Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 870
ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No 2008/4413 
VETERANS' APPEALS DIVISION	)	
	Re	BERNARD BROWN 	
	Applicant
	And	REPATRIATION COMMISSION 	
	Respondent
DECISION
Tribunal	Mr S Karas, AO, Senior Member 	
Date	11 November 2009 
Place	Brisbane 
Decision	The Tribunal affirms the decision under review.  
	
	..................[Sgd]............................
	Senior Member 

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Service with Royal Australian Navy – Diagnosed conditions of posttraumatic stress disorder, depressive disorder and alcohol dependence – Conditions not related to period of operational or eligible service – Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 9, 19, 70, 120, 120A, 120B

Repatriation Commission v Milenz (2006) 93 ALD 107
Stoddart v Repatriation Commission (2003) 74 ALD 366

REASONS FOR DECISION

11 November 2009 	Mr S Karas, AO, Senior Member 		

BACKGROUND
1.	Bernard Brown (“the applicant”) served with the Royal Australian Navy (“the Navy”) from 11 February 1967 until 10 February 1976.  He rendered operational service in South Vietnamese waters as follows:
•	Aboard the HMAS Duchess:
18 November 1968 – 25 November 1968; and
16 November 1969 – 29 November 1969.
•	Aboard the HMAS Sydney:
20 September 1971 – 16 October 1971;
26 October 1971 – 18 November 1971;
24 November 1971 – 17 December 1971;
14 February 1972 – 9 March 1972; and
1 November 1972 – 30 November 1972.

2.	In a decision dated 30 November 2004, the Administrative Appeals Tribunal (“the Tribunal”) determined that the applicant’s diagnosed conditions of depressive disorder and posttraumatic stress disorder (“PTSD”) had no causal nexus with his eligible service.
3.	Under review is that part of a Repatriation Commission (“the respondent”) decision dated 4 April 2008 which refused the applicant’s claim for pension and treatment in relation to the conditions diagnosed as depressive disorder, PTSD and alcohol dependence (in remission).  That decision was based on the grounds that those conditions were neither war-caused nor defence-caused as defined by ss 9 and 70 of the Veterans’ Entitlements Act 1986 (“the Act”).  The Veterans’ Review Board affirmed the decision on 18 August 2008. 
ISSUES AND LEGISLATION
4.	The issues for the Tribunal to determine are whether the conditions of depressive disorder, PTSD and alcohol dependence (in remission) are war-caused within the meaning of s 9 of the Act.  In so determining, it is necessary to consider whether the applicant experienced a category 1A, 1B or category 2 stressor (as defined in the various Statements of Principle listed below) during and attributable to his eligible service.
5.	Section 9 of the Act provides that a person’s injury or disease is war-caused if it:
•	resulted from an occurrence on operational service;
•	arose out of or was attributable to eligible war service;
•	resulted from an accident while travelling to or from duty;
•	was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or 
•	was contributed to in a material degree or aggravated by eligible war service.
6.	In determining the issues, the Tribunal must apply different standards of proof in respect of the applicant’s operational and non-operational service.
7.	The standard of proof that applies in relation to operational service is that of “reasonable hypothesis”: ss 120(1) and 120(3) of the Act.  Whether a hypothesis is reasonable is determined by reference to s 120A of the Act and the relevant Statement of Principles (SOP).
8.	The standard for non-operational service is that of “reasonable satisfaction”: s 120(4) of the Act.  The Tribunal will be “reasonably satisfied” if, on the balance of probabilities, the applicant’s condition is defence-caused in accordance with s 120B of the Act and the relevant SOPs.  
9.	The SOPs set out factors that are the only ways the applicant’s conditions may be connected to his relevant experience.  Indeed, at least one of these factors must be found to exist before the requisite nexus between the applicant’s condition and his service may be found.  The relevant SOPs for this matter are:
•	Posttraumatic Stress Disorder: Instruments Nos 5 and 6 of 2008;
•	Depressive Disorder: Instruments Nos 27 and 28 of 2008;
•	Alcohol Dependence (in remission): Instrument Nos 1 and 2 of 2009 (with accrued rights to Instruments Nos 17 and 18 of 2008).
10.	The Act at s 19 provides that an applicant’s incapacity from war-caused or defence-caused conditions shall be assessed throughout the whole of the assessment period, which commences on the application day (in this case 28 August 2007) and ends when the claim or application is determined.
EVIDENCE
11.	Mr Harding, counsel for the applicant, noted that he would not be revisiting the events or claims from the earlier Tribunal hearing in 2004 and that their only relevance was as “part of the history to this claim.”  He indicated that the stressor and key event relied on by the applicant was the “fuel tanker incident” of January 1975.  Mr Harding stated that this event was a category 1A stressor for the applicant.
12.	In evidence, the applicant referred to his naval service in Vietnam on HMAS Duchess and HMAS Sydney and stressful episodes he encountered there.  He referred to a boiler-room steam incident and the recovery of a body from a helicopter crash as particularly traumatic and stressful events that had a “big effect“ on him, causing him to often drink until inebriated.  The applicant recounted how he started drinking heavily during his service in Vietnam and how the drinking got progressively worse.  He lost confidence and was not happy with himself.  During his Vietnam days he drank until he became “legless.”
13.	The applicant said that when he joined the Navy at age 18 he intended to make a career of the Navy - his plans were to become a Chief Petty Officer.  This intention changed after the fuel tanker incident in 1975.  He did not stay in the Navy after his service period expired.
14.	In recounting the fuel tanker incident, the applicant referred to the map he had drawn for the Veterans’ Review Board hearing: T5, folio 164.  He explained that he was working at a fuel depot, in a little office near the fuel tanks.  The fuel tanks were enclosed behind a concrete wall, which was not as high as the tanks.  He heard a truck come in, looked over and saw smoke coming from the truck.  The driver had walked off to the transport office; the applicant could not say with certainty if the driver had seen the smoke.  However, he realised that the truck had been driven with the handbrake on.  Grabbing a fire extinguisher, he crawled underneath the truck (whose ignition was off) to see the tail shaft, where he saw no flame despite the smoke.  However, the brake drum was glowing red and so he emptied the contents of the fire extinguisher onto it, thereby extinguishing the smoke.  He knew from his time on the HMAS Melbourne that “you don’t muck around with aviation fuel” as it ignites “very easily.”  He thought there would be a horrible explosion and that he would die. 
15.	Afterwards, the applicant went to the motor transport office for a smoke and coffee.  Although he complained of the handbrake problem to a mechanic, he did not report the incident to anybody (including his superiors) as the truck driver was a friend whom he did not want to get into trouble.  He said he did not speak of the incident until years later: “Loose lips sink ships”, he stated.
16.	The applicant believed that had the truck ignited there would have been “a catastrophe”, and so he did not want to work around fuel again.  He volunteered to go to Darwin to help with the reconstruction after Cyclone Tracy.  He had more access to alcohol in Darwin and drank heavily there.  Reference was made to his seeing a psychiatrist in Darwin in 1975 and to episodes with other co-workers there.  He dressed in “pirate rig” in Darwin, not his naval uniform.  He had left his uniform in HMAS Albatross where it got mouldy and so he could not wear it.  He was discharged from the Navy in 1976 as he was not interested in staying in the Navy any longer.  
17.	The applicant noted that he saw a psychiatrist in Darwin in 1975 about his drinking but did not mention the fuel tanker incident to him.  He also saw other psychiatrists to whom he also failed to mention that incident.  Indeed, in evidence, he could not remember when he first told his treating psychiatrist (Dr B Anderson) of the fuel tanker incident, although he started seeing him in 2002.  Neither did he raise the fuel tanker incident at his earlier hearing at the Tribunal in 2004.  The applicant stated that he might not have mentioned it then as he was told by someone it was not war service related.
18.	The applicant saw a number of psychiatrists over the years.  He saw Dr Wieteska in Darwin in December 1975 after being referred to him by a superior officer.  Dr Wieteska noted that “he had an alcoholic problem”.  A report from the applicant’s commanding officer on 18 March 1975 also referred to his alcoholic state.  Dr P Cullen examined the applicant in December 2000 and noted his history of excessive alcohol use.  Dr K Koller diagnosed the applicant in January 2002 with an anxiety disorder.  Dr Anderson, in a January 2003 report, diagnosed the applicant with PTSD and referred to his Vietnam service as the trigger for the stress disorder.  In 2004, Dr J Gold diagnosed the applicant with adjustment disorder, anxiety and alcohol dependence (in remission).  In all these reports, no reference is made to the applicant mentioning the fuel tanker incident.  It is first raised in Dr Anderson’s report of 17 January 2008.
19.	Dr Anderson referred to his reports and stated that the applicant’s condition of PTSD and co-morbidity became worse over time.  He referred to the various incidents which had taken place over the years and the cumulative affect of these as stressors on the applicant, aggravating his experiences.  Dr Anderson noted a number of sensitising events in the applicant’s Naval career that had an impact on his behaviour, conduct and emotions: the helicopter crash and body retrieval; the traumatic events in Vietnam, such as the boiler-room steam incident; and the fuel tanker incident.  Dr Anderson stated that the applicant would drink heavily because he was distressed and anxious.  He referred to the fuel tanker incident as a “critical incident” that had aggravated the applicant’s symptoms of PTSD and depressive disorder.  The applicant was treated with anti-depressants.  Dr Anderson said that the applicant was sensitised by the fuel tanker incident to such an extent that he went to Darwin to get away from fuel.  In Darwin, his drinking and drunken conduct worsened.  Dr Anderson based his reports and findings on what he was told by the applicant and his wife, Mrs J Brown. 
20.	Dr Anderson explained that although he was aware of the legislation within which he works, he is not an advocate for the applicant.  He noted that the applicant was “not a good historian” and how he tended to “get emotional about his naval experiences.”  He had high symptoms of anxiety and arousal.  These symptoms were aggravated by the fuel tanker incident due to the applicant being “very vigilant about risk and safety requirements.”  Dr Anderson was not sure if the fuel tanker incident highlighted the applicant’s symptoms as he was already a heavy drinker.  Dr Anderson thought the applicant found it difficult to relate to others and had social problems.
21.	The applicant’s counsel (Mr Harding) referred to the fuel tanker incident as a category 1A stressor, a dangerous event during which the applicant felt his life was threatened.  He stated that the statements and actions of the applicant were not those of a person who would embellish his position.  Mr Harding re-iterated that the applicant was a loner, that the driver of the “fuel tanker incident” truck was his friend, and that the incident had ended without tragedy.  Therefore, Mr Harding continued, it was reasonable conduct on the part of the applicant in those circumstances not to report the incident.  
22.	The respondent’s advocate, Mr Kelly, referred to the applicant’s failure to mention the fuel tanker incident for some years, including at the earlier Tribunal hearing in 2004.  He stated that despite the applicant’s submission that the 1975 fuel tanker incident was a stressful and life threatening event, he did not mention it to either his doctors or psychiatrists until 2007 (when he told Dr Anderson).  On that basis, Mr Kelly submitted, the applicant’s actions during and after the incident indicated that it did not have the claimed effect on him.  Mr Kelly submitted that the incident was not a category 1A stressor or a life threatening event as maintained by the applicant.  Mr Kelly noted that although Dr Anderson had said that the fuel tanker incident aggravated pre-existing conditions of depressive disorder, alcohol dependence and PTSD, no examples of how this might have occurred were given.  Mr Kelly submitted that the applicant’s submissions failed in accordance with the principles referred to in Repatriation Commission v Milenz (2006) 93 ALD 107.  In relation to alcohol abuse, Mr Kelly reminded the Tribunal that the applicant had given evidence of his heavy drinking since 1968.  In conclusion, Mr Kelly referred to Mansfield J’s statement in Stoddart v Repatriation Commission (2003) 74 ALD 366 at 378 [50]: “I do not think it [the definition of ‘severe stressor’] provides for idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause.”
CONSIDERATION
23.	The Tribunal notes that entries from the applicant’s medical records throughout the years show significant alcohol intoxication on his part.  Indeed, he gave evidence that during his Vietnam service, especially on visits to Singapore, he would drink excessively and become “legless.”
24.	The applicant stated that the fuel tanker incident of January 1975 was the major stressor that caused him to drink more heavily.  However, the Tribunal is reasonably satisfied that that incident does not constitute a category 1A stressor; nor is there any evidence of an event during the applicant’s eligible defence service that meets the description of a category 1B stressor.  The applicant’s response to the fuel tanker incident is such that the Tribunal cannot accept that it was the cause of or added to his alcohol dependency.  Indeed, the evidence is that the applicant had an alcohol dependency since 1968, during his Vietnam service, when he would drink until becoming “legless.”  As well, the applicant did not report the fuel tanker incident to anyone - despite his assertions that the incident was very dangerous, life threatening and potentially catastrophic.  After the incident, it appears he had a smoke and coffee, slept reasonably well and drank the day after.  Although he saw a number of doctors after the incident, he did not mention it until 2007.  (As noted above, it was not referred to as a stressor in the 2004 hearing before the Tribunal.)  Further, the Tribunal does not accept the applicant’s assertion that the reason he did not mention it was that “loose lips sink ships.”  The fuel tanker incident did not occur in a war zone, or during hostilities in a conflict situation.  Given his fears and safety concerns, one would have thought he would report the incident (particularly if the handbrake over-heating was a fairly regular occurrence) in order to have it remedied and for better safety rules to be introduced, thereby creating a safer environment.
25.	The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the diagnosed conditions of PTSD, depressive disorder and alcohol dependence (in remission) were related to operational service.  This is because, although the applicant referred to incidents (such as the boiler-room steam incident) that occurred during his operational service, there is no corroborative evidence showing that his life was in danger so as to satisfy the definitions of a category 1A or 1B stressor.  Nor were circumstances such as to satisfy the definition of a category 2 stressor.  Consequently, the Tribunal finds that no “reasonable hypothesis” (required by s 120(3) of the Act) appears from the material before it.   
26.	The Tribunal is reasonably satisfied that the applicant did not experience a category 1A, 1B or category 2 stressor in the course of his eligible defence service.  As indicated earlier, the Tribunal does not in the circumstances find that the fuel tanker incident is a category 1A or category 1B stressor.
DECISION
27.	The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed: 	................................[Sgd]................................................
		Mátyás Kochárdy, Research Associate

Date of Hearing	8 October 2009 
Date of Decision	11 November 2009
Counsel for the Applicant	Mr A Harding 
Solicitor for the Applicant	Mr J Cockburn 
Advocate for the Respondent	Mr J Kelly