Pink and Repatriation Commission [2003] AATA 82 (17 January 2003)

Last Updated: 31 January 2003

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/466

VETERANS' APPEALS DIVISION	)
	Re	DARRYL KEITH PINK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member WJF Purcell

Date 17 January 2003

Place Adelaide

Decision

For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - Disability Pension - anxiety disorder - alcohol dependence or alcohol abuse - whether applicant's conditions are war-caused within meaning of section 9 of Act - whether applicant experienced severe stressors during his operational service - reasonable hypothesis

Veterans' Entitlements Act 1986 sections 9, 120, 120A

Statement of Principles No 76 of 1998

Statement of Principles No 1 of 2000

ORAL REASONS FOR DECISION

17 January 2003

Senior Member WJF Purcell

1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 2 August 2000, insofar as it rejected alcohol dependence or alcohol abuse, and anxiety disorder, as war-caused conditions. The Veterans' Review Board (VRB) affirmed the decision on 28 September 2001.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Pickhaver appeared as counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Crowe represented the Commission, which called Captain H Josephs, Historian, who gave evidence by way of telephone link up.

3. The applicant, who is 53 years of age, was born and grew up in Adelaide. He did not hold any employment between leaving school and enlisting as a junior recruit with the Royal Australian Navy (the Navy) at the age of 16, in 1966. He served from 11 July 1966 to 31 December 1973. His periods of operational service in Vietnam aboard HMAS Yarra (the Yarra) are from 22 February 1970 to 1 March 1970, and 22 February 1971 to 1 March 1971, and aboard HMAS Vampire (the Vampire) from 21 November 1972 to 26 November 1972, a total of 22 days. He was in Vung Tau Harbour on the Yarra for 4 hours on 27 February 1970, and for 7 hours 44 minutes on 25 February 1971. He was 11 hours 35 minutes in Vung Tau Harbour on board the Vampire on 23 November 1972, and 8 hours 9 minutes on 24 November 1972. This last voyage was escorting HMAS Sydney (the Sydney) on its last voyage to Vietnam.

4. The applicant asserts that his conditions relate to his operational service, and the appropriate standard of proof is that of reasonable hypothesis, in accordance with section 120(1) of the Veterans' Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:

"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.

(2) ...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A."

5. Section 120A provides:

"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

(2) ...

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

(a) a Statement of Principles determined under subsection 196B (2) or (11); or

(b) a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

..."

6. The hypothesis propounded by the applicant is that his conditions of alcohol dependence or alcohol abuse, and anxiety disorder, relate to his operational service, in that on the whole of the material, the traumatic events which he experienced during his relevant service, connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles, at least one of the Factors set out in clause 5 of the respective Statement of Principles, must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant's relevant service.

7. The current Statement of Principles for alcohol dependence or alcohol abuse, is Instrument No 76 of 1998 (the alcohol abuse SoP). It was in force also, at the time of the primary Commission decision. In relation to the condition of alcohol dependence or alcohol abuse, the applicant contends that Factor 5(b) of the alcohol abuse SoP is satisfied: "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". "Experiencing a severe stressor" is defined as:

"... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"

8. In relation to the condition of generalised anxiety disorder, the current Statement of Principles, which was in force also at the time of the primary Commission decision, is Instrument No 1 of 2000. The applicant maintains that in relation to Factor 5(c), the clinically significant psychiatric condition is "generalised anxiety disorder", and that he satisfies Factor 5(a)(ii) of the appropriate Statement of Principles for the condition of generalised anxiety disorder (the anxiety disorder SoP). Factor 5(a)(ii) reads:

"experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;"

9. "Severe psychosocial stressor" is defined as:

"... an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems".

10. The applicant commenced at HMAS Lewin for 12 months for his basic training. He was then posted as an ordinary seaman to the Sydney for 6 months, whilst it was in dry dock for most of that time. He was at HMAS Watson for 6-9 months, where he undertook an able seaman's underwater control course. During this time he trained to be a sonar operator. At the same time, he performed the duties of an able seaman, which meant that during periods of operational service, he was able to carry out the duties of a sonar operator and was rostered on, in the sonar room. His task was to detect unusual activity in the water around the ship. In the ships upon which he has served, the sonar room was directly below the operations room, below the bridge. During operations the sonar room was "closed up" and seaman could leave, but others are not allowed to enter, in order to keep noise levels reduced.

11. The applicant said in evidence that when he first went to Vietnam in February 1970, he was only 20 years of age. The Yarra acted as an escort for the Sydney. They picked the Sydney up at sea and escorted it to South Vietnam. After it had discharged and loaded its troops in Vung Tau Harbour, they were to escort it out of the Harbour and continue at sea.

12. The applicant said that his role as underwater controller was the same on the Vampire as on the Yarra, as they performed similar roles. On each occasion when he went to South Vietnam, the Yarra and the Vampire entered Vung Tau Harbour ahead of the Sydney, did a sweep of the Harbour and then the Sydney would follow and anchor.

13. The applicant submits that 6 incidents which occurred during his periods of operational service constitute "severe psychosocial stressors" and satisfy Factor 5(a)(ii) of the anxiety disorder SoP and/or "severe stressors", and satisfy Factor 5(b) of the alcohol abuse SoP. Dr Ewer outlined 5 of these stressors in his first report of 19 April 2000 as follows:

"...

1. Mr. Pink told me that he felt very anxious and worried when he was acting as a lookout in Vung Tau Harbour. He explained that it was his task to detect enemy divers. These divers were attempting to place bombs on the vessel Mr. Pink was on. Mr Pink looked out for the divers both on the deck and using sonar.

2. Mr. Pink told me that he was distressed when he saw planes dropping various bombs over Vietnam. He told me some of these were Napalm bombs and he could see them exploding into flames. He was distressed thinking of the impact these bombs were having upon the people they were targeting. Mr. Pink also feared that the vessel he was on would be drawn into the conflicts that he could see.

3. Mr. Pink told me that he saw jets engaging in air to ground fire. Mr. Pink told me this caused him considerable anxiety.

4. Mr. Pink told me that he experienced considerable anxiety when he was down below the decks. He told me that it was very frightening hearing explosions nearby. He told me that he felt helpless and anxious "not knowing what was going to happen next".

5. Mr. Pink told me that the anxiety caused by the above stressors was heightened because he had heard about the HMAS Hobart being accidentally hit by American Forces.

..." [T7/91]

14. Dr Ewer reported, in part, as follows:

"...

I believe Mr. Pink's Generalized Anxiety Disorder is directly related to his war service. Firstly, Mr. Pink denied experiencing feelings of anxiety prior to going to Vietnam. Secondly, there is a temporal relationship between the stresses described and the development of his Anxiety Disorder in the sense that the latter came on directly after the former. I also believe there is a causal link between the stresses and him developing a Generalized Anxiety Disorder because the latter condition can be well understood in the context of the stresses that I have described.

..." [T7/95]

15. The applicant said in evidence that as to the individual incidents, incidents 1 and 4, "being sonar operator below decks while in Vung Tau Harbour" and "look out Vung Tau Harbour", that after the Sydney anchored, the Yarra patrolled in and around the Harbour and then anchored close by, remained on alert, watching for persons who might have attempted to place bombs on the hull of the vessel, as they had been told this was a possibility. He said that he never observed divers attempting to place bombs on the vessels. During the time they were in Vietnamese waters, they maintained "status alpha" which was the top level of readiness. He would do a cycle of an hour in the sonar room, and then 4 hours on lookout. His lookout station was either the bridge or the quarterdeck. At different times there were scare charges going off, which were intended to scare and/or injure any person who might have been engaged in attempting to attach bombs to the vessel. When the applicant was in the sonar room, the bridge would inform them that the charges would be released, but sometimes this did not happen, and the sound of the scare charges was frightening. He said that they had no idea whether they were one of our scare charges or one of theirs. It was the feeling of being closed up in the confined space in a war zone, and not knowing what could happen that most concerned the applicant.

16. Incidents 2 and 3, which are "the planes engaging in combat operations and dropping Napalm bombs".. The applicant said in evidence that on one occasion while in Vung Tau Harbour he observed planes engaging in enemy activity. He saw US spotter planes, and then 2 planes 15 to 20 kilometres miles away in the hills behind Vung Tau Harbour. He says that one of them appeared to be dropping bombs. He saw flashes. It was a cloudy day and he presumed they were Napalm bombs. He was distressed to think of people being harmed. He said they were given virtually no information about what was happening in Vietnam, and they learned more from what they read in newspapers than from what they were told by their officers.

17. Incident 5, which is "HMAS Hobart (the Hobart) being accidentally hit by US forces".. The applicant stated that he and other crew members heard about the Hobart being accidentally hit by US forces, which made them nervous in relation to their own activities.

18. Incident 6, "closing in on an unidentified ship".. The applicant raised at the VRB hearing a further incident, which he outlined in his oral evidence. He said, in evidence, that on the second trip on 25 February 1971, the Yarra had come out through the Harbour ahead of the Sydney, and an unidentified ship was picked up on radar. He was on watch on the post bridge, and was finally able to see the ship through his binoculars at a later stage. The Yarra signalled to the ship to identify itself, but it took some minutes to respond, and the Captain put the vessel at action stations. The applicant said that it was very difficult to describe the stress of sitting on the ship, trying to identify another ship, not knowing what type of vessel it was and hoping it did not fire on them.

19. The history of the stressors as outlined in Dr Ewer's reports differed quite markedly from the sworn evidence the applicant gave at the Hearing. In the course of Dr Ewer's evidence, in both examination and cross-examination, the history of each stressor, as outlined in the applicant's oral evidence, was put to Dr Ewer. Dr Ewer said, in evidence, that in relation to the first 4 stressors, the applicant's oral evidence would pass the objective test of the respective definitions of a "severe stressor" or a "severe psychosocial stressor", as defined in the respective Statements of Principles, but not the subjective tests. However, they did not evoke intense fear, helplessness or horror as defined in a "severe stressor", nor evoke feelings of substantial distress as required by the definition of a "severe psychosocial stressor".. They would not satisfy the subjective test. Dr Ewer said in evidence that in these circumstances none of the stressors therefore would satisfy the Statements of Principles.

20. In relation to the sixth incident, "closing in on the unidentified vessel", Dr Ewer said that the applicant had never mentioned this event to him. Dr Ewer said that as the applicant's treating psychiatrist, who has seen the applicant on 6 occasions for treatment, he was surprised that so significant an event had not been mentioned. It was unlikely, in his view, that the applicant's poor memory would be the only explanation, but Dr Ewer said he would need to pursue the reasons for not mentioning the incident before he could give an opinion as to whether it could satisfy the relevant Statement of Principles.

21. In these brief Reasons, it is not possible to outline in any further detail the evidence provided at the Hearing, all of which I have taken into account. I am satisfied on the evidence, beyond reasonable doubt, that the applicant never experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury. Factor 5(b) of the alcohol abuse SoP is not satisfied.

22. I am satisfied, beyond reasonable doubt, that the applicant did not experience a "severe psychosocial stressor", and that Factor 5(a)(ii) of the anxiety disorder SoP has not been satisfied. The material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant.

23. For these reasons the Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .......................................................................................

Associate

Dates of Hearing 16/17 January 2003

Date of Decision 17 January 2003

Counsel for the Applicant Mr M Pickhaver

Solicitor for the Applicant Mr G Hemsley

Counsel for the Respondent Mr A Crowe

Solicitor for the Respondent DVA