Bamford and Repatriation Commission
[2005] AATA 1093
•4 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1093
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/813
Nº V2005/46VETERANS' APPEALS DIVISION
Re: ANTHONY JOHN BAMFORD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 4 November 2005
Place: Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) G.D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - osteoarthrosis of right knee - lumbar spondylosis - diverticular disease of the colon - psoriasis - alcohol dependence - whether service‑caused
Veterans’ Entitlements Act 1986 ss 68(1), 70(1), 70(5), 120B, 120(4), 196B, 196B (14)
REASONS FOR DECISION
4 November 2005 G.D. Friedman, Senior Member
1. Application N° V2003/813: This is an application by Anthony John Bamford (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 1 May 2003. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 31 May 2000 to refuse a claim for disability pension for localised osteoarthrosis of the right knee, lumbar spondylosis, diverticular disease of the colon and psoriasis, because the conditions were not service-caused.
2. Application N° V2005/46: This is an application by the applicant for review of a decision of the VRB dated 24 November 2004. The VRB affirmed a decision of the respondent dated 9 January 2003 to refuse a claim for alcohol dependence.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), plus twenty exhibits (Exhibits R1-R20) lodged by the respondent.
BACKGROUND
4. The applicant was born on 3 June 1952 in Albury, New South Wales. After completing Year 12 he won a teaching scholarship in Wagga Wagga, but left after 6 months to work in a bank, then in the insurance business in Sydney. On 2 July 1974 he joined the Australian Army (the army). He completed recruit training at Kapooka and artillery training in Sydney before a posting to Queensland. He was accepted into the Officer Cadet School at Portsea, Victoria, and on completion of the course was appointed as Second Lieutenant and posted to Ingleburn in New South Wales, then Kapooka and Puckapunyal.
5. At Puckapunyal the applicant was promoted to Lieutenant and was assigned duties as Quartermaster and Adjutant in a workshop company. He was discharged from the army on 4 November 1982 at his own request, after a posting to Victoria Barracks in Melbourne, and his service constitutes defence service in accordance with the Veterans’ Entitlements Act 1986 (the Act).
6. After leaving the army the applicant worked as a security guard for more than one year, then as a factory hand, followed by employment as a part-time cook for around two years. He then moved to Kyneton, where he became a farmer and developed a hazelnut plantation, which failed in about 1990 due to drought and other factors. In the early 1990s he established a pheasant farm, but was forced to discontinue the business after about two years after suffering a serious arm injury in a fencing accident. He has been on a disability support pension since 1996.
7. Application N° V2003/813: On 24 January 2000 the applicant lodged a claim for arthritis (both knees), lower back pain, diverticulitis and psoriasis. On 31 May 2000 the respondent refused the claim for localised osteoarthrosis of the left knee, localised osteoarthrosis of the right knee, lumbar spondylosis, diverticular disease of the colon and psoriasis. On 22 February 2001 the applicant lodged an application for review with the VRB. On 30 July 2002 the respondent accepted localised osteoarthrosis of the left knee and granted pension at 20 per cent of the general rate. On 1 May 2003 the VRB affirmed the decision of 31 May 2000. On 22 August 2003 the applicant lodged an application with the Tribunal for review of the VRB decision.
8. Application N° V2005/46: On 17 June 2002 the applicant lodged a claim for alcohol abuse, back problems, left + right knee problems, nervous problems, psoriasis, blood pressure problems and diabetes. On 9 January 2003 the respondent refused the claim for diabetes mellitus, alcohol dependence and hypertension, and decided that there was no medical condition to answer the claim for medical problems. The claims for psoriasis, back problems, left + right knee problems were dealt with separately. On 22 February 2003 the respondent accepted the claim in respect of cervical spondylosis, and on 23 June 2003 pension was increased from 20 per cent of the general rate to 80 per cent. On 23 October 2003 the applicant lodged an application for review with the VRB. On 24 November 2004 the applicant withdrew the claims in respect of diabetes mellitus and hypertension, and the VRB affirmed the decision of 9 January 2003 concerning alcohol dependence. On 14 January 2005 the applicant lodged an application with the Tribunal for review of the VRB decision.
9. The issues before the Tribunal are whether the applicant’s localised arthrosis of the right knee, lumbar spondylosis, diverticular disease of the colon, psoriasis and alcohol dependence were service‑caused.
EVIDENCE
10. In oral evidence the applicant stated that at first he enjoyed being in the army, but towards the end of his service he became disillusioned because of the workload, the administrative and bureaucratic nature of his duties, and the fact that he was taken away from the ordinary soldiers. He said that after discharge he tried a number of occupations but found that marriage and relationship difficulties, parenting responsibilities and external matters such as drought and his injuries in the 1990 accident contributed to financial and other problems. The applicant explained that the 1990 accident left him with left arm, shoulder, elbow and wrist injuries, and that he is no longer able to work or drive a vehicle because the effect of the injuries has spread to his back, knees and ankles.
11. In respect of the localised arthrosis of the right knee the applicant stated that he suffered injuries to his knees in separate incidents while playing hockey during his officer training in about 1975. He said that he reported the injuries to the Regimental Aid Post (RAP). However, there is no written record. He said the absence of any reference in medical documents was probably due to a failure by the sergeant to record the injuries, or to a loss of the documents.
12. In respect of lumbar spondylosis the applicant stated that during his army service he was required to run and carry heavy loads such as artillery pieces while wearing non-absorbing boots. He also described an incident in 1978 when he was considering undertaking a parachute course. He said that he jumped from a stool and landed awkwardly, and was given medication and physiotherapy. The applicant referred to the medical attendance document (Exhibit R1, page 16) which makes reference to the thoraco-lumbar region, and that medication was prescribed. He noted that he is in constant pain and continues to take medication.
13. In respect of diverticular disease of the colon, the applicant said that he first became aware of the condition during his army service, when he reported to the RAP and that the medical attendance document (Exhibit R1, page 20) noted: spleen tipped; night sweats. He referred to medical records that noted a past history of diarrhoea/generalized abdominal discomfort (Exhibit R1, page 13) and various references to symptoms such as distended stomach, abdominal pain, sweating and diarrhoea during his service. The applicant confirmed that he had undergone surgery in 1988 for a bowel resection and later a hernia.
14. In respect of psoriasis the applicant said that he suffered from the condition as a child but it had disappeared long before his enlistment. He stated that psoriasis developed as a result of stress in the army, and that he had been given ointment when he attended the RAP, but the treatment was not successful.
15. In respect of alcohol dependence the applicant stated that before service he was a social drinker once per week. He told the Tribunal that in the army he began to drink heavily because of peer pressure and because alcohol was widely available and cheap. He said that he drank 4 or 5 glasses of beer each day and more at weekends, and this amount increased to 10 pots per day during corps training. The applicant said that during officer training he drank up to 20 glasses of beer per day, plus varying amounts of wine and spirits, and that his heavy consumption continued throughout his service.
16. The applicant maintained that despite his heavy drinking he did not believe that he had an alcohol problem, and had not sought treatment. He was critical of the lack of action by army authorities in dealing with his alcohol problem. He said that appropriate procedures for the identification and treatment of personnel with alcohol problems were not followed, as there were references to his drinking in various army documents, but these were not addressed.
17. Under cross-examination the applicant agreed that on many occasions in the army he continued working despite suffering pain, and that he did not attend the RAP for every medical issue, although he did so for the major problems. He acknowledged that he has attended a large number of medical practitioners for his numerous conditions, and he agreed that could not remember the history he gave to each, and could not account for discrepancies in some of the medical reports. He agreed that in his discharge medical examination he did not mention his back pain. He said this was because he wanted to get out of the army. The applicant also agreed that at the discharge medical examination he did not mention diarrhoea or abdominal pain, and said that in the army he stopped complaining about medical problems because there was no real effort to help him.
18. The applicant acknowledged that when seeking to join the army he had not disclosed his psoriasis suffered as a child because he feared that his application would have been rejected. He agreed that his first divorce in 1976 was followed by an increase in his drinking, although he said that his work was never affected by his heavy alcohol consumption. He stated that he has never undertaken counselling for his drinking, because he has been in denial about having an alcohol problem. However, he said that if he had been ordered to, he would have attended Alcoholics Anonymous or other treatment options. The applicant emphasised that in performance appraisals he had been recommended a number of times for promotion, and was performing the duties of the rank of Major while he was a Lieutenant. He said this indicated that the army believed his drinking had no adverse impact on his performance.
19. In a written report dated 31 December 2002 (T10, page 108A) Dr J. Cronin, consultant psychiatrist, stated that the applicant related his drinking problems to work pressures as an army officer, and concluded:
…He fulfils the diagnostic criteria for alcohol dependence and in view of the above I consider that this has been caused by his military service.
He is suffering physical problems as his drinking continues and he is suffering significant social complications. He has not received and is not motivated to receive treatment for alcohol dependence and his prognosis is poor.
20. In a written report dated 31 May 2004 (Exhibit R17) Dr N. Rose, psychiatrist, stated:
…What is apparent is that Mr Bamford is suffering from alcohol dependency. In my opinion, this alcohol dependency is unrelated to any trauma or stress during service. I note that both of Mr Bamford’s parents were heavy drinkers. Mr Bamford claims to have started drinking more heavily after the breakup of a relationship. Because of all these factors, I cannot say that he is suffering from a psychiatric condition that is related to service…
21. In a written report dated 3 November 1993 (R6, page 70) Mr R. Cunningham, orthopaedic surgeon, stated:
…His x-rays of 2.9.93 show evidence of old osteo-chondritis dissecans or very old injury to the medial femoral condyle on the right but nothing else…
22. In a written report dated 13 October 2004 (R18) Dr S. Hall, associate professor of medicine, stated that he examined the applicant and received a large volume of documentation. He said:
I do not believe that Mr. Bamford has any identifiable osteoarthritis of his right knee. There was no restriction of movement, swelling or crepitus. There was a small area of localised tenderness over the medial patellar facet, the significance of which is uncertain.
On review of his extensive documentation which you provided, I could find no evidence of any documentation of his statement that the knee was swollen and he had been placed on light duties for one week while at Officer Training School…
23. In a written Diagnostic report - localised osteoarthrosis of the right knee dated 22 May 2000 (T5, page 26) for the Department of Veterans’ Affairs Dr I. Devlin, general practitioner, diagnosed osteoarthritis of the right knee based on x-rays taken in 1993.
24. In a written report dated 1 April 1992 (R11, page 39) Dr P. Lowthian, rheumatologist, stated:
…He also has psoriasis over his elbows, knees and ankles and this has been present for 30 years.
…
He told me that he consumes a lot of alcohol - of the order of a cask, and gets, as he described ”plastered” on alternate days, depending on the pain in his shoulder…
…
He stated that he has always been a moderately heavy drinker (4-5 glasses per day); however since the injury his alcohol consumption has increased a lot.
25. In a written report dated 28 May 2002 (R7) Dr R. Marks, consultant dermatologist, stated:
Thanks for referring Anthony Bamford with his psoriasis on and off for 20 years. He has been treated with a variety of products but responded best to Daivonex ointment…
CONSIDERATION OF THE ISSUES
26. The relevant sections of the Act are s 70, s 120B and s 120(4). Section 70(1) of the Act provides that the Commonwealth is liable where a member of the defence force suffers incapacity or death from defence-caused injury or disease. The applicant rendered eligible defence service in accordance with s 68(1) of the Act, as he served a period of continuous full-time service as a member of the defence forces on and after 7 December 1972.
27. Section 70(5) provides for eligibility for pension:
(5) For the purposes of this Act, the death of a member of the Forces…an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;…
28. Section 120(4) of the Act provides that the standard of proof to be applied is that of reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. The Tribunal is also required to refer to section 196 of the Act which sets out the functions of the Repatriation Medical Authority, the main function of which is to determine Statements of Principles. For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition. Section 196B(14) of the Act states:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service;
…
29. At the time of the respondent’s original decisions the applicable SoP for osteoarthrosis was N° 42 of 1998 as amended by N° 20 of 1999. The applicable SoP is now N° 82 of 2001. Pursuant to s 196B of the Act, clause 5 of the SoP lists the relevant factors that:
…must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service.
Factor 5(h) provides:
5.…
(h) suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint;
Paragraph 8 of the SoP states:
“trauma to the affected joint” means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a)immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;
30. At the time of the respondent’s original decision the applicable SoP for lumbar spondylosis was N° 28 of 1999. The applicable SoP is now N° 47 of 2002 as amended by N° 78 of 2002. Factor 5(g) provides:
(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis;
Paragraph 8 of the SoP states:
“trauma to the lumbar spine” means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
31. The applicable SoP for diverticular disease of the colon is N° 68 of 1994 as amended by N° 281 of 1995. Factor 1(b) of N° 68 of 1994 provides:
(b)inability to obtain appropriate clinical management for diverticular disease of the colon.
Paragraph 3 states:
The factor set out in paragraph 1(b) applies only where:
(a) the person’s diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.
Paragraph 4 states:
For the purposes of this Statement of Principles:
“diverticular disease of the colon” means the clinical consequences of a herniation or sac-like protusion of the colonic mucosa and the submucosa through the muscular coat of the colon, attracting ICD code 562.1;*
…
32. The applicable SoP for psoriasis at the time of the decision was N° 22 of 1998. The applicable SoP is now N° 57 of 2002. The relevant factors in N° 22 of 1998 are:
…
5.…
(d) undergoing treatment with a drug from the specified list at the time of the clinical worsening of psoriasis; or
(e) suffering from alcohol dependence or alcohol abuse involving regular consumption of an average of 420 g/week of alcohol (contained within alcoholic drinks), at the time of the clinical worsening of psoriasis; or
(f) suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder at the time of the clinical worsening of psoriasis;
…
Paragraph 6 states:
Paragraphs 5(c) to 5(g) apply only to material contribution to, or aggravation of, psoriasis where the person’s psoriasis was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
The relevant factors in N° 57 of 2002 are:
5.…
(i) undergoing treatment with a drug from the specified list at the time of the clinical worsening of psoriasis; or
…
(k) suffering from alcohol dependence or alcohol abuse involving regular consumption of at least an average of 420 g/week of alcohol at the time of the clinical worsening of psoriasis; or
(l) suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder at the time of the clinical worsening of psoriasis;
…
33. The applicable SoP for alcohol dependence or alcohol abuse is N° 77 of 1998. The relevant factors are:
5.…
b)experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse;
…
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Paragraph 2(b) provides:
“alcohol dependence” means 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.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2)withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
Paragraph 8 provides:
…
“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.
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;
34. In respect of the claim of osteoarthrosis of the right knee the applicant submitted that there are numerous references in various documents to a history of injury to the right knee. He said that several medical specialists confirmed the diagnosis. However, Mr Douglass submitted that the Tribunal should accept the evidence of Dr Hall, a specialist in this field, that there is no osteoarthrosis of the right knee. Mr Douglass said that an examination by an orthopaedic surgeon of X‑rays taken in 1993 cast doubt on the diagnosis by Dr Devlin. He said that even if a diagnosis of osteoarthrosis was made, there is no causal connection with the applicant’s eligible service because there is no medical evidence of trauma to the right knee in a hockey match, sufficient to satisfy the definition of trauma in the SoPs. Mr Douglass stated that in the Final Medical Board examination the applicant made no reference to injury to his right knee.
35. In respect of lumbar spondylosis Mr Douglass submitted that the claimed fall from a stool at Kapooka does not satisfy the definition of trauma in the relevant SoP, as there were no acute symptoms. He noted that the medical attendance record of 31 August 1978 declared the applicant fit for full duty. He noted again that the applicant made no reference to a back injury in the Final Medical Board examination.
36. In respect of diverticular disease of the colon the applicant submitted that he first presented in 1978 with symptoms consistent with the condition, and that incompetence by medical personnel contributed to a lack of appropriate diagnosis and treatment. However, Mr Douglass submitted that the applicant’s evidence of non-specific abdominal symptoms, which could be attributable to a number of conditions, does not point to the clinical onset of diverticular disease as defined in the relevant SoP. He said that the Final Medical Board examination specifically denied the existence of appropriate symptoms, and the medical records show that clinical onset of the disease occurred in 1988 when the applicant was treated for diverticular disease at Royal Melbourne Hospital. Mr Douglass submitted that even if the clinical onset was found to have occurred earlier, there was no objective or subjective barrier to the applicant obtaining appropriate clinical management for the condition.
37. In respect of alcohol dependence the applicant submitted that his heavy drinking should have caused senior officers and medical personnel to be sufficiently concerned to ensure the provision of appropriate treatment. However, Mr Douglass submitted that the condition had been diagnosed but that the applicant did not experience a severe stressor within one year immediately before the clinical onset of the condition. He stated that the evidence indicated that the applicant’s alcohol consumption varied considerably over time, and that medical practitioners have attributed an increase in drinking to a workplace accident in 1990. Mr Douglass pointed to the applicant’s promotion to Lieutenant and his performance reports. He submitted that there was no persuasive evidence that the applicant suffered from alcohol dependence during service; or that there was an inability to obtain appropriate clinical management of the condition because of the unavailability of appropriate medical facilities. Further, Mr Douglass submitted that there was no evidence of clinical worsening of the condition or aggravation of the alcohol dependence. He submitted that any fluctuations in the level of alcohol consumption were attributable to factors other than the applicant’s service.
38. In respect of psoriasis the applicant submitted that he satisfied the criteria for alcohol dependence. He also said that although he developed psoriasis in childhood, all pre-enlistment medical reports showed him to be fit, and that the first symptoms occurred during service. However, Mr Douglass submitted that the applicant has not established that he suffered from psoriasis during service. He also stated that clinical onset of psoriasis occurred before the applicant’s eligible service, and that there is no evidence that the condition worsened during service. Mr Douglass submitted that there is no evidence in the service records that the applicant was ever treated with anti-malarial drugs. He noted, however, that there are references in the service records to depression due to chronic pain arising from the 1990 work-related injury. He also pointed to diagnoses of post-traumatic stress and anxiety arising from an assault in 1991. He submitted that the clinical onset of these conditions occurred after 1990 and were attributable to factors other than the applicant’s service.
39. Mr Douglass stated that, in relation to psoriasis, the applicant is unable to satisfy the SoP applicable to anxiety disorder and depressive disorder because he did not suffer a service-related severe psychosocial stressor; and even if the Tribunal were to find that he did, clinical onset of the conditions did not occur within one year of suffering from such a stressor.
40. In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing. The Tribunal must form an opinion whether a contention raised by the applicant fits within, or is consistent with, a factor set out in the SoPs. If the contention fails to fit within the template, the claim will fail. In applying the SoPs, the Tribunal may consider the SoP that was applicable at the date of the decision and the SoP currently applicable, and may take into account the SoP that is the most favourable to the applicant.
41. In respect of osteoarthrosis of the right knee the Tribunal notes the diagnosis by the general practitioner, Dr Devlin, in 2000, based on X-rays taken in 1993. The Tribunal also takes into account a different assessment of the X-rays by an orthopaedic surgeon, Mr Cunningham. The Tribunal prefers the opinion by Professor Hall, a specialist in the field, that the applicant does not have any identifiable osteoarthrosis of his right knee. Despite detailed medical evidence in the service records of the applicant’s various conditions, there is no reference to an injury to the right knee sustained in a hockey match; even though an injury to the left knee is documented. For these reasons, on balance, the Tribunal is reasonably satisfied that the applicant does suffer from osteoarthrosis of the right knee.
42. In respect of lumbar spondylosis the Tribunal accepts the diagnosis. On the question of whether the applicant suffered a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis, the Tribunal notes that the definition of trauma in the SoP requires the development of acute symptoms of pain and tenderness within 24 hours and lasting at least 10 days, and altered mobility or range of movement of the lumbar spine. The Tribunal takes into account that the medical attendance record of 31 August 1978 (Exhibit R1, page 16), after the claimed fall from a stool at Kapooka, confirms back pain over the lower thoraco-lumbar region, but states that the applicant was fit for full duty. The Tribunal also notes that at the Final Medical Board examination the applicant did not report any back injury. In all the circumstances, on balance, the Tribunal is reasonably satisfied that the applicant did not suffer a trauma to the lumbar spine and is unable to satisfy the relevant SoP.
43. In respect of diverticular disease of the colon, the Tribunal accepts the diagnosis. The Tribunal notes the evidence from the applicant that he reported symptoms of distended stomach, abdominal pain, sweating and diarrhoea during service, and in particular general diarrhoea and generalised abdominal discomfort in 1978 and a tipped spleen in 1981. The Tribunal notes further that chronic gastro‑intestinal symptoms are specifically denied in the Medical Board Report of 7 March 1978 and the Final Medical Board Report, and the tests out regarding the spleen found no enlargement of the spleen or alcoholic cirrhosis.
44. The Tribunal accepts the submission from Mr Douglass that these complaints do not appear to have had a marked effect on the applicant during service, and do not substantiate the diagnosis of diverticular disease of the colon during service. The material as a whole suggests that the clinical onset of the diverticular disease was 1988 when the applicant was treated for diverticulitis at the Royal Melbourne Hospital. This appears to be supported by the applicant in 1999, when he stated in a claim form for disability pension and medical treatment (T4, page 16) that he first became aware of diverticulitis in 1990. Consequently, the condition was not contracted prior to or on service and the applicant does not satisfy paragraph 3 of SoP N° 68 of 1994; so factor 1(b) does not apply. For these reasons, on balance, the Tribunal is reasonably satisfied that the diverticular disease is not related to the applicant’s service and he does not satisfy the relevant SoP.
45. In respect of alcohol dependence the Tribunal accepts the diagnosis. The Tribunal accepts the applicant’s evidence, supported by extensive histories given to medical practitioners, that his alcohol consumption has varied over time, and at times has been heavy. The Tribunal accepts the submission from Mr Douglass that medical practitioners have referred to matters such as the applicant’s workplace accident in 1990 and relationship difficulties as factors leading to an increase in his drinking. The Tribunal also accepts the applicant’s evidence that he enjoyed his time in the army, that he was always able to perform his duties even while drinking, and that his drinking increased after he left the army.
46. The Tribunal accepts the evidence from the applicant and other military and medical personnel that the applicant was always able to carry out his duties satisfactorily at all stages of his army service. Much of his drinking was carried out in the mess or canteen, and did not appear to have a severe impact on his recreational activities or his professional duties. The Tribunal is aware from the material that the applicant has never faced a charge involving over-indulgence of alcohol. Although there are notations in military records about him being an occasionally heavy and indiscreet drinker, the applicant generally received positive performance appraisals. After one appraisal in 1978 he was critical of the comment: Too often he over‑indulges in alcohol.
47. In all the circumstances the Tribunal finds that there was no clinically significant impairment or distress during service, and that the applicant does not satisfy the diagnostic criteria for alcohol dependence during service. Therefore, he is unable to satisfy the SoP concerning alcohol dependence, and there is no need for the Tribunal to make a decision on whether the applicant satisfies factors 5(b) and (e).
48. In respect of psoriasis the Tribunal accepts the diagnosis. On the medical evidence and the evidence from the applicant, the Tribunal finds that the clinical onset occurred in childhood and therefore before service. Therefore, the Tribunal must look at whether there was a clinical worsening during his service. The Tribunal notes the evidence from Dr Marks in 2002, that the applicant had suffered from psoriasis on and off for 20 years. The Tribunal also notes the evidence from Dr Lowthian in 1992 that the applicant had suffered from the condition for 30 years. The Tribunal also notes that in the army medical records of 15 January 1982 (Exhibit R1, page 25) psoriasis is noted but the medical officer has noted nil effects and assessed the applicant as fit for full duty. Other references to psoriasis do not appear to demonstrate any aggravation of the condition. For these reasons the Tribunal is reasonably satisfied that there was no clinical worsening of the applicant’s psoriasis during service. Therefore, the applicant is unable to satisfy any of the relevant factors in the SoP.
49. As the applicant cannot satisfy any of the relevant SoPs his application does not succeed.
DECISION
50. The Tribunal affirms the decisions under review.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd): Lydia Zozula
Associate
Dates of hearing: 7 and 8 July 2005
Date of decision: 4 November 2005
Advocate for the applicant: Self-represented
Advocates for the respondent: Mr R. Douglass and Ms J. McCulloch
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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