Ahrens and Repatriation Commission
[2004] AATA 943
•20 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 943
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/154
VETERANS’ APPEALS DIVISION )
Re DOUGLAS AHRENS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date10 September 2004
Place Brisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that alcohol abuse or dependence, ischaemic heart disease, hypertension, and impotence are war-caused with effect from 31 April 2002
..................Signed............................
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2003/154
GENERAL ADMINISTRATIVE DIVISION )
Re DOUGLAS AHRENS Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2004] AATA 943
Tribunal Ms MJ Carstairs, Member Date20 September 2004
PlaceBrisbane
I DIRECT that the Decision and Reasons for Decision issued by the Tribunal on 10 September 2004 be amended so that the date of effect for the acceptance of the conditions alcohol abuse or dependence, ischaemic heart disease, hypertension and impotence as war-caused be shown as 1 May 2002 in lieu of 31 April 2002.
Member
CATCHWORDS
VETERANS’ DIVISION –benefits and entitlements - operational service – claims that conditions are war caused – alcohol abuse or dependence – experiencing a severe stressor – clinical onset
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 120A(3)
Lees v Repatriation Commission [2002] FCAFC 398)
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
Ms MJ Carstairs, Member 1. This is an application by Douglas Ahrens (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 28 January 2003 rejecting the applicant’s claims to have his conditions of diabetes mellitus, alcohol abuse, hypertension, ischaemic heart disease and impotence accepted as related to his war service.
2. At the hearing the applicant was represented by Mr R Clutterbuck of counsel instructed by Streeting Haney, Solicitors. The respondent was represented by its advocate Mr J Kelly.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as exhibits marked A1 – A4 for the applicant and R1 - R6 for the respondent.
BACKGROUND
4. The applicant was born on 29 May 1937. He left school at the age of fifteen and worked in various jobs including as a postal delivery clerk and, for his father, as a butcher. In July 1956 he was called up for national service, joining the Royal Australian Naval Reserve for a period of four years until June 1960. Between 21 September 1956 and 13 October 1956 he served with the Far Eastern Strategic Reserve (FESR) as part of a group of national service trainees who joined HMAS Sydney when taking part in joint exercises with the British, New Zealand and Pakistani Navies near Singapore and in the Gulf of Thailand. The period of service in the FESR is operational service within the meaning of the Veterans’ Entitlements Act 1986 (the Act). After completing six months of national service, the applicant remained in the active reserve forces but was not called back for duty.
5. After his service the applicant returned to work for his father as a butcher until 1965. He then moved to a number of jobs as forestry worker, butcher shop manager, purchasing officer for a restaurant, in seafood sales, meat delivery and as production manager for meat retailers. His last position before retirement was as a night security guard. The applicant was sacked by four employers for reasons of dishonesty and he was imprisoned on two occasions, once for six months in Townsville and the next for eighteen months in Wacol. The applicant retired from full-time work about 1990. He receives a service pension, but works one day per week as a bookmaker’s assistant at the races.
6. The applicant made his claim for the conditions on 31 July 2002. He sought review by this Tribunal of the rejection of his claims on 25 February 2003. At the hearing the applicant withdrew his claim for diabetes mellitus. Therefore the issues for the Tribunal are whether the applicant’s alcohol abuse, impotence, ischaemic heart disease and alcohol abuse are related to his service.
EVIDENCE
7. In an undated written statement (exhibit R5) the applicant stated that he was conscripted into the Navy at eighteen years of age and after training he was posted to HMAS Sydney for service in the waters around Singapore. He said that when he enlisted he was a non-drinker. He stated that servicemen had access to rations of beer when they were in tropical areas, and that he drank to ease his anxiety about serving. He said that he drank beer in preference to water as the issued water was unpalatable as salt was added to prevent dehydration.
8. In his claim for pension the applicant described an incident (the NAAFI incident) that occurred when he was on shore leave in Singapore having joined a group from the ship for drinks at the NAAFI Club, a recreational club for service personnel managed by the Royal Navy (exhibit R3). At the club he witnessed the death of a US serviceman who had dived from the upper floor of the club to the swimming pool below, apparently as a bet, but misjudged the distance and was killed when he landed on the concrete surrounds of the pool. The applicant was seated metres from where the serviceman fell to his death. The applicant said the noise and images have haunted him since and he said in oral evidence that he consumed alcohol as a comfort after he was experiencing flashbacks of the NAAFI incident.
9. The applicant said the butcher on board HMAS Sydney knew the applicant’s brother and arranged for the applicant to work with him. Work in the butchery commenced at 6am and finished at 10am and the head butcher had an arrangement for obtaining extra alcohol from the captain’s steward and this was shared with those working in the butcher’s shop after they finished their work in the morning. The applicant dated his pattern throughout his working life of drinking in two daily sessions, one at lunch and one after work, from this time in the butchery. He said that he was able to secure employment in civilian life where he started early, completed what was required of him, and commenced drinking.
10. The applicant said his drinking pattern now that he is retired is one session from mid-morning to mid-afternoon, consuming about twelve schooners of full-strength beer per day. He said that in civilian life he moved location and changed jobs constantly when his drinking and money problems caught up with him. He was charged with an offence of drink driving in 1960, and again about fifteen years ago after crashing a car. He was gaoled for offences of dishonesty, which he said he engaged in to support a lifestyle that included considerable drinking and socialising. He said that during his first gaol term he had access to alcohol, brewed by the prison inmates and in the second gaol term was obtaining alcohol stolen from stores.
11. The applicant completed an alcohol questionnaire on 23 July 2003 (exhibit A2) which stated that in October 1956, after witnessing the NAAFI incident he increased his consumption to six bottles of beer per day, and that between 1957 and 1960 he was consuming four schooners of beer at lunch and 4-6 schooners at night and twice a week consumed 24 middies at night. The applicant had stated in a previous alcohol questionnaire that his consumption aboard HMAS Sydney had increased to 10 to 12 standard drinks per day. He said that he later increased to 20 standard drinks per day but reduced this to 12 standard drinks in 1990 for financial reasons. The applicant said that he was reprimanded for one offence related to heavy drinking on shore leave from HMAS Sydney in Manila.
12. Mr D McIntyre said that he served aboard HMAS Sydney and was present at the NAAFI incident. He said he did not observe the NAAFI incident directly as he was about thirty metres away. He said he heard what happened but was not interested in looking. He could not recall where the applicant was sitting. He said the NAAFI incident was over quickly and he thought that their group, including the applicant, left the club afterwards and went drinking elsewhere before returning to ship. Mr McIntyre said he recalled that some people were upset by the incident, but he was able to put it out of his mind.
13. In a written report dated 14 October 2003, Commodore A Brecht (ret.), researcher with Writeway Research Services, stated that he was unable to confirm the incident at the NAAFI Club as the club no longer operates and research of the Singapore Straits Times for the period that HMAS Sydney was berthed in Singapore (28 September - 5 October 1956) revealed no reports of the NAAFI incident.
14. In a written report dated 9 September 2002 (T4), Dr M Katz, consultant psychiatrist, diagnosed the applicant as satisfying the criteria for alcohol abuse or dependence according to DSM-IV, stating that his alcohol use was self-destructive, involving heavy ingestion of alcohol despite suffering from hypertension, kidney stones, impotence and diabetes, which were likely to be alcohol-related. Dr Katz noted that if the applicant ceased, he suffered withdrawal symptoms and referred to his experience of symptoms of tremor, agitation, restlessness, irritability and aggression when hospitalised for five days in a cardiac unit for a suspected heart attack. Dr Katz said that the applicant had developed a tolerance of alcohol which enabled him to function reasonably, but he said there was a clear history of anti-social behaviour related to alcohol. Dr Katz dated alcohol-related problems to the applicant’s military service.
15. In a written report dated 27 January 2004 (exhibit A1), Dr J Chittenden, specialist in psychological medicine, stated that the applicant told her that at the NAAFI Club his group were transfixed by the suddenness and horror of the incident and he said it was discussed for days afterwards onboard ship. He said that he was in a state of shock, and said that after the NAAFI incident life was never the same again. The applicant told her that he was not sleeping, and was very distressed by the memory and increased his alcohol consumption to assist with sleep and help him forget. In her oral evidence, Dr Chittenden said that she considered that the applicant was abusing alcohol while on HMAS Sydney. She said that prior to the NAAFI incident the applicant was drinking lightly. Afterwards he was drinking to relieve symptoms of anxiety. She also stated that his being in the butchering section enabled him to increase his intake readily.
16. Dr Chittenden said that the applicant recounted enjoying an active social and sporting life after service, but she noted that his activities invariably involved drinking alcohol. She recounted his history of embezzling money and getting into financial difficulties, followed by episodes where he uprooted his family to escape financial difficulties. Dr Chittenden also spoke to the applicant’s wife and concluded that Mrs Ahrens had been affected significantly by her husband’s alcoholism.
17. Dr Chittenden noted the following as relevant to the diagnosis she made: the applicant continued to obtain alcohol illegally in prison; he was involved in two serious motor vehicle accidents where he was charged with driving with a blood alcohol level well above the legal limit; he attended Alcoholics Anonymous twice after a health scare but did not continue because he did not wish to discuss his problems; he experienced symptoms of withdrawal when alcohol was withheld in hospital in a cardiac unit. However, Dr Chittenden noted that the applicant suffered few physical side effects of alcohol such as headaches or hangovers, though he becomes irritable and difficult within the family.
18. Dr Chittenden said that the applicant now has reduced his level of drinking compared with levels he consumed in the past, limiting himself to twelve schooners per day. Under cross-examination Dr Chittenden said that the applicant has reached a level of tolerance where he can manage with less alcohol, and in her clinical experience this is not unusual. She said that with increased age, a lower level of alcohol achieves the same effects as a higher level when younger, and that the applicant was now in a position of chronic alcohol dependence. She said that the applicant knows that his alcohol consumption is dangerous for his health but is unable to cease, suffering symptoms of anxiety if alcohol is withdrawn.
19. In a written report dated 6 October 2003 (exhibit R2) Dr J Wainwright, psychiatrist, stated that the applicant reported drinking 12-14 schooners of beer daily, less on Saturdays, when he works at the races. Dr Wainright took a history of the applicant drinking three bottles of beer per day by the time HMAS Sydney reached Singapore. The applicant described the NAAFI incident to Dr Wainright, saying “After Singapore I wasn’t quenching my thirst …Before, life had been a big joke. Then I took life more seriously”.
20. Dr Wainright said that there is no objective way to assess whether the applicant suffered alcohol abuse or dependence on service and noted that many veterans exaggerate their level of alcohol consumption. He acknowledged in cross-examination that his report did not discuss extensively the applicant’s intake of alcohol at different times. He also said he refrained from interviewing the family as he finds it unhelpful. Dr Wainright noted that blood and urine screening showed a mildly elevated serum creatinine which might indicate a disturbance in kidney function; a markedly elevated uric acid level; and a raised CDT result, which is a diagnostic test for alcoholism. He said that the pathologist referred to the raised CDT result as indicating probable alcohol excess.
21. Dr Wainwright concluded that the applicant has significant antisocial personality traits but decided that the applicant did not suffer from alcohol dependence. He said in oral evidence that the diagnosis of alcohol dependence or abuse depends upon whether the consumption of alcohol is causing significant impairment or distress. Dr Wainright said that there was no evidence of alcohol consumption causing clinically significant impairment or distress, as there were no changes in cognition. He stated that the applicant had not developed a tolerance for alcohol, where tolerance is demonstrated by the need to steadily increase amounts of alcohol in order to maintain the effects. He considered that the applicant does not experience withdrawal symptoms when unable to obtain alcohol but acknowledged under cross-examination that he was unaware of the applicant’s symptoms in the cardiac unit, and agreed that symptoms of anxiety, tremulousness and sweating were consistent with symptoms of withdrawal.
22. Dr Wainright said that the applicant’s history of sustaining a 43-year relationship with his wife and raising six children was not consistent with a significant history of alcohol abuse or alcohol dependence. Dr Wainright questioned whether the applicant drank the amounts he claimed. He said that his life experience suggested to him that people who drank to that level were incapable of organising the crimes carried out by the applicant.
23. Dr Wainright acknowledged in cross-examination that Dr Chittenden had obtained a more detailed history about the applicant’s memories of the NAAFI incident but said that the applicant lacked emotion when describing the incident and he concluded that there was no evidence that the incident made a lasting impression on him.
CONSIDERATION OF THE ISSUES
24. Section 9 of the Act prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…
25. There was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and 120(3) of the Act apply. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
26. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
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 a 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.
27. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: s120(4) of the Act. Mr Kelly submitted that the Tribunal should prefer the evidence of Dr Wainwright and find that the applicant does not suffer from either alcohol abuse or alcohol dependence, because this diagnosis required the presence of clinically significant impairment or distress. He said that apart from the applicant’s elevated CDT level there was no liver damage, cognitive impairment, or other evidence of damage. He submitted that the Tribunal should place less weight on Dr Chittenden’s report as it was based heavily upon the history given by the applicant and his wife, without objective testing. Amongst other things, Mr Clutterbuck submitted that Dr Wainright’s views were coloured by bias and failed to take account of important features of the applicant’s history. He said the Tribunal should prefer the evidence of Dr Chittenden.
28. In considering the first issue of diagnosis the Tribunal took into account the views and reports Dr Wainright and Dr Chittenden, as well as the report of Dr Katz who agreed with Dr Chittenden that the applicant suffered from alcohol abuse or dependence. The Tribunal preferred the evidence of Dr Chittenden to that of Dr Wainright. Dr Chittenden took a more comprehensive history and more clearly recorded matters such as changes the amount of alcohol that the applicant was consuming after the NAAFI incident. Dr Wainright’s report, while comprehensive, omits important parts of the history, including the increase in alcohol consumption after the NAAFI incident and the physiological symptoms that the applicant experienced in the cardiac unit. Dr Wainright’s conclusion that the applicant does not experience withdrawal symptoms failed to take account of those symptoms. In his written report and oral evidence Dr Wainright appeared preoccupied with the applicant’s criminal behaviour after service and did not sufficiently address the period of his service and the NAAFI incident.
29. The Tribunal was satisfied that the diagnostic criteria for alcohol dependence as set out in the SoP at paragraph 2, derived from the Diagnostic and Statistical Manual of Mental Disorders 4th Ed 1994 (“DSM-IV”), were met as the applicant showed continued use of alcohol despite significant alcohol-related problems affecting his working life and family life as well as his health. He demonstrated a repeated pattern of self-administration reflected in his daily use of alcohol. While features of tolerance are not present there is evidence of withdrawal symptoms. The applicant’s and the history given by his wife to Dr Chittenden shows compulsive alcohol use behaviour. The medical evidence suggests that his alcohol consumption has led to physiological impairment as his conditions of hypertension, diabetes, impotence, and raised uric acid levels are said to be related to his alcohol consumption. Whilst it seems the applicant is not cognitively impaired and suffers few of the usual side-effects of alcohol consumption, these are not the only measures of impairment as referred to in the definition of alcohol dependence’ in paragraph 2(b) of the SoP.
30. Taken as a whole the evidence suggests that the applicant demonstrates a maladaptive pattern of alcohol use which supports the diagnosis of alcohol dependence as set out in the SoP at paragraph 2(b)(2), 2(b)(3), 2(b)(5), 2(b)(6) and 2(b)(7). The Tribunal was therefore satisfied that the applicant suffers from alcohol dependence as diagnosed by Dr Chittenden and Dr Katz.
31. The parties agreed that the hypothesis reflected factor 5(b) in Instrument No 76 of 1998, the SoP for alcohol abuse or dependence, which provides as a factor raising a connection between alcohol consumption and service (s120(3) of the Act), experiencing a severe stressor within the two years before the clinical onset of alcohol dependence or abuse. Experiencing a severe stressor is defined in the SoP in the following terms:
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror….
32. In respect of the third step as set out in Deledio, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contains all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. The hypothesis raised is that the applicant’s consumption of alcohol was related to his operational service in the FESR as a reaction to the NAAFI incident, leading to his seeking comfort and solace from alcohol. He then became dependent upon alcohol.
33. The parties agreed that the NAAFI incident came within the definition of experiencing a severe stressor and Mr Kelly conceded that if the Tribunal were to decide that alcohol abuse or dependence was related to service it would follow that the conditions of hypertension, ischaemic heart disease and impotence would be related to service.
34. Mr Kelly submitted that the claim for alcohol abuse or dependence as related to service must fail because the requirement for onset of alcohol abuse or dependence to occur within two years of experiencing a severe stressor was not met. He said that two years after the NAAFI incident, the applicant had returned to work for his father, was beginning his bookmaker’s job and was participating in sport, and it would be some two years later again that he was first charged with drink driving and some four years before he experienced money problems. He said there was no real evidence that the applicant could be diagnosed with alcohol abuse or dependence within two years of service.
35. Applying the third step in Deledio, the Tribunal is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypotheses raised must contain at least one of the factors in the SoP, and that factor must be related to the applicant’s service. The critical part of factor 5(b) in this case is the issue of clinical onset of alcohol abuse or dependence. Clinical onset is 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 (Lees v Repatriation Commission [2002] FCAFC 398).
36. Both Dr Katz and Dr Chittenden have addressed the issue of clinical onset in their reports. Dr Katz stated that alcohol-related problems date from the applicant’s military service. Dr Chittenden stated that a contributing factor to the applicant’s present alcohol abuse and dependence was the incident at the NAAFI club and his abuse and dependence have continued since that time. This is evidence that points to clinical onset at the time of the applicant’s service.
37. The applicant gave evidence that he was a non-drinker before he was conscripted and this was consistent with his age of nineteen on enlistment, the legal drinking age then being twenty one. His evidence was that he was deeply affected by the NAAFI incident. The occurrence of the incident was supported by the evidence of Mr McIntyre. The Tribunal took into account the applicant’s evidence that he had opportunity to access additional alcohol on service in the butcher’s shop. The Tribunal took into account Dr Wainright’s evidence to the contrary concerning clinical onset, but this evidence does not detract from the fact that there is evidence, which, with the applicant’s evidence, points to the hypothesis.
38. In regard to the fourth step in Deledio, pursuant to s120(1), after having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s alcohol dependence is war-caused. The applicant’s case rests on the impact of observing the NAAFI incident and the effects on him. The occurrence of the NAAFI incident was not seriously disputed by the respondent, despite there being no contemporaneous newspaper reports of the incident. The applicant’s evidence is uncontradicted. If there are inconsistencies with the evidence of Mr McIntyre, who did not claim to be a close observer, this does not provide a basis on which to find that facts supporting the hypothesis are disproved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564.
39. Under s120(1) the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved inconsistent with those raised by the hypothesis. The Tribunal took into account that the applicant had not referred to the NAAFI incident in an earlier claim and took into account that he referred in the earlier claim to consuming alcohol for reasons of peer pressure and because he felt apprehension as a national serviceman engaged in naval exercises in hostile waters. The Tribunal took into account that the applicant’s period of operational service is quite short.
40. The Tribunal finds that the applicant commenced drinking alcohol while on service with the FESR and was exposed to alcohol at a much earlier age than he would have been otherwise in the community as the legal drinking age was twenty-one years. The Tribunal accepts the applicant’s evidence that he was deeply troubled by the horror of NAAFI incident. The nature of the applicant’s service in the tropics made alcohol available and the Tribunal accepts the applicant’s evidence that he used it as a comfort for his distress. It was more available to him than to others because of his connections to those who were accessing additional supplies of alcohol in the butchers shop.
41. The Tribunal took account of submissions that the applicant must show had the condition within two years of service. Dr Chittenden’s report is clear on this and she referred to the applicant as being disciplined after shore leave from HMAS Sydney for drunken behaviour. The applicant’s evidence was that he has had a pattern of consuming alcohol daily in two drinking sessions since the time of his service until he reduced his consumption in the early 1990’s. Taken as a whole the applicant has had a pattern a dysfunctional use of alcohol after his service and the connection of his alcohol abuse or dependence to his service is not disproved beyond reasonable doubt.
42. The Tribunal accepts the submissions of the parties that the conditions of hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004, and replacing No 31 of 2001, in force at the time of primary decision), ischaemic heart disease (Instrument No 35 of 2003) and impotence (Instrument No 97 of 1996) would follow from the applicant establishing the connection of alcohol abuse or dependence with war service. The Tribunal accepts the evidence of Dr Chittenden that the applicant’s alcoholism was chronic and problematic. The Tribunal notes that the evidence points to the applicant consuming quantities exceeding 200 grams per week of alcohol in alcoholic drinks within the six month period before hypertension was diagnosed in 1996. This means that the hypothesis has the elements matching factor 5(b) in the SoP for hypertension, which provides for consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension.
43. The respondent submitted that the applicant was relying on factor 5(a) of Instrument No 97 of 1996 for impotence. The evidence however points to factor 5(n) of the SoP for impotence which provides for suffering from psychoactive substance abuse or dependence involving alcohol at the time of the clinical onset of impotence.
44. The Tribunal was not satisfied that any facts necessary to support the hypotheses in regard to impotence, hypertension, and ischaemic heart disease were disproved beyond reasonable doubt. Nor was the Tribunal satisfied beyond reasonable doubt of the existence of other facts inconsistent with the hypotheses that disprove the hypotheses. Therefore the applicant’s claims to have hypertension, impotence and ischaemic heart disease attributed to his war service within the meaning of s9 of the Act succeed.
DECISION
45. The Tribunal sets aside the decision under review and substitutes the decision that alcohol abuse or dependence, ischaemic heart disease, hypertension, and impotence are war-caused with effect from 31 April 2002.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: .....................................................................................
B. Hitchcock , Personal AssistantDate/s of Hearing 21 May 2004 (Coolangatta)
Date of Decision 10 September 2004
Counsel for the Applicant Mr RJ Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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