Bates and Repatriation Commission - [2002] AATA 794

DECISION AND REASONS FOR DECISION [2002] AATA 794

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1542

VETERANS' APPEALS DIVISION       )
           Re      TREVOR JOHN BATES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date12 September 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and decides instead that the applicant suffers from the war-caused disease of alcohol abuse and that he qualifies for payment at the special rate. The date of effect of this decision is 2 November 1999.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether alcohol abuse a war-caused disease – whether veteran experienced a severe stressor – whether alcohol consumption affected by operation service – whether veteran qualified for pension at special rate – whether war-caused diseases were sole cause for veteran's inability to continue remunerative employment – veteran genuinely sought to engage in remunerative employment – decision under review set aside

Veterans' Entitlements Act ss 14(3), 20(1), 24(1), (2), 120(1), (3), (4)

Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse

Bull v Repatriation Commission [2001] FCA 1832
Deledio, Repatriation Commission v (1998) 49 ALD 193
Smith, Repatriation Commission v (1987) 74 ALR 537

REASONS FOR DECISION

12 September 2002 Mr M J Sassella, Senior Member Dr P D Lynch, Member

HISTORY OF APPLICATION

On 2 February 2000 Trevor John Bates ("the applicant") lodged a claim with the Department of Veterans' Affairs ("the DVA") for Disability Pension in respect of alcohol abuse and post traumatic stress disorder (T22).
The applicant's accepted disabilities are: generalised anxiety disorder, tinea, pruritis ani and bilateral sensorineural hearing loss with tinnitus (ex TD1/1). He receives a pension assessed at 70% of the general rate.
On 4 February 2000 the Repatriation Commission ("the respondent") rejected the claim for a Disability Pension on the basis of alcohol abuse (T24). The delegate stated that investigation of alcohol abuse had shown that the condition was not present and there was no other medical condition that would answer the claim for the condition. The delegate stated that on 9 June 1994, the applicant had made a claim for "post traumatic stress disorder". The applicant was referred by his general practitioner, Dr A Clarke, to Dr L Lambeth, a consultant psychiatrist. A report from Dr Lambeth dated 31 July 1994 diagnosed the applicant with a generalised anxiety disorder of mild intensity. It was noted that the applicant used less than 40 grams of alcohol per day and there was no alcohol dependence or abuse (T24).
On 16 February 2000 the applicant lodged an application for review of the respondent's decision with the Veterans' Review Board ("the VRB") (T25) claiming alcohol abuse and that his alcohol consumption had increased markedly since the earlier report of Dr Lambeth (T25).
On 22 June 2000 the respondent decided to refuse the application for an increase in Disability Pension (T28). The Disability Pension was to continue at 70% of the general rate. This assessment was made under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ("GARP").
The delegate also noted that the applicant was involved in an action for unfair dismissal against his former employer. This indicated that the applicant was capable of full-time employment and that the applicant's accepted disabilities were not the cause of his dismissal.
reviewable decision
On 22 August 2000 the VRB affirmed the decision of 4 February 2000, which refused a claim for medical treatment and pension for incapacity from alcohol abuse on the ground that the diagnosis of the condition could not be confirmed (T32).
The VRB considered the report of Dr Lambeth (T5) where it was stated that applicant had suffered mild generalised anxiety disorder and had used less than 40 grams of alcohol a day and there was no diagnosis of alcohol abuse. The VRB was concerned that Dr Law's assessment of the applicant did not take into account the major stressor of the applicant losing his job with the Gundagai District Service Club and later action in the Industrial Commission. The VRB found that the applicant suffered from stress and anxiety following his work dismissal. According to the report of Dr Lambeth, the applicant was able to work long hours until his job termination and the alcohol abuse began after that. The applicant's wife had stated that the applicant was not coping well on the service pension and his not being gainfully employed led to excessive dependence on alcohol (T25). In the applicant's application for review of the Repatriation Commission's decision he stated that his alcohol consumption increased markedly since the report of Dr Lambeth.
The VRB found that the alcohol abuse was of relatively recent origin. The VRB also considered the Statement of Principles ("SoP") concerning alcohol abuse and the factors which can connect this condition to relevant service. The requisite conditions in the SoP did not apply as the alcohol abuse was of recent origin. The VRB found that the major stressors suffered by the applicant were related to his dismissal from the Gundagai District Service Club and later proceedings in the Industrial Commission. They were not related to service and did not meet the definition of severe stressor in the SoP. The generalised anxiety disorder was not considered to be war-caused because any stressful events affecting the applicant on service were more than two years before the clinical onset of the condition which was diagnosed in 1994. It was also found that the generalised anxiety disorder was not considered to have been war-caused in connection with acceptance of other conditions. The entitlement issue relating to alcohol abuse was not accepted, so the issue of assessment and payment at special rate did not arise. The VRB also noted that the applicant's termination of employment with the Gundagai District Service Club was not because of his war-caused disabilities.
On 5 October 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision of the VRB (T1).
BACKGROUND
The applicant was born on 9 July 1947 and presently lives in Newcastle. He had a happy and stable family life and obtained the Intermediate Certificate at school, leaving when he was 15. He has a younger brother who has been diagnosed with paranoid schizophrenia, but the applicant has shown no signs of this condition himself. He worked with the railways for one year, did two years as a sandblaster and then worked for one year as a painter. He joined the army at age 18 and was in service for six years (T5, ex A3). The applicant's total service was between 12 September 1966 and 11 September 1972 (T3/20). His operational service was from 13 June 1967 to 26 April 1968 (T2, T32). He served overseas in Malaysia and Singapore between 1969 and 1972, and in South Vietnam in 1967-1968 (T3/2D).
On 1 June 1998 the applicant stated in his claim for Service Invalidity Pension that he was suffering from post-traumatic stress, an inability to cope and was unfit for work (T10/16A). He stated that he was exposed to danger from hostile enemy forces whilst in Vietnam and was subjected to enemy attacks during his period of service there. He did not mention alcohol (T10/16D).
After leaving the army he was involved mainly in sales work, then did some truck driving and returned to sales, selling gaming machines.
On 9 April 1994 the applicant completed an "Alcohol Questionnaire" addressed to DVA indicating that he commenced to drink in 1966, during his military service. His drinking increased when he was on duty in Vietnam, and after his military service he continued to increase his intake of alcohol whilst working as a sales representative. He stated that his nerves were bad after returning from Vietnam and he drank to block out memories of experiences in Vietnam. He claimed he had not stopped drinking since then, and prior to army service he was not a smoker or drinker (T4/7A).
Whilst working as a sales representative in alcohol sales, he travelled around and socialised with shop and hotel personnel. Some alcohol was available free of cost and social events were part of the job. He drank constantly, though he never considered it to be a problem and only had one drink-driving offence in the early 1980's. He later changed employment to the gaming industry in the hope of better work opportunities. He was in a partnership in the gaming industry with a friend some years ago but that company went bankrupt and the applicant lost his house through his guaranteeing of the business (T5, ex A3, R2, R3).
Amongst the claim forms, the applicant completed a DVA lifestyle questionnaire stating that his personal life had suffered from problems caused by service in Vietnam. He stopped working in 1998 because of termination of employment with no reason. The other basis for the claim was alcohol abuse, alcohol-triggered panic attacks and fear of crowds of people. He claimed that his increased recreational consumption of alcohol appeared to fuel an attitude of aggression and he related his severe depression to the increased consumption of alcohol (T23/54-55).
From 20 May 1997 the applicant worked for the Gundagai District Service Club as a Secretary-Manager (T15/24). That employment ceased after 12 months and Mr Bates pursued a wrongful dismissal action in the Industrial Commission, however this claim did not succeed.
Mr Bates lives at home with his wife (T28/66). He has sought employment but has not been able to obtain work, partly due to his age, health problems and because of the few employment opportunities available in the Newcastle area where he currently resides.
HEARING
The tribunal convened a hearing in this matter in Sydney on 13 November 2001. Mr N Dawson of counsel represented Mr Bates and Mr Modder of the DVA Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Mr Bates. The tribunal received the following documents into evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T37) provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, 28 February 2001.
Exhibit A2 – Applicant's statement, 5 February 2001.
Exhibit A3 – Report by Dr A Dinnen, psychiatrist, 31 January 2001.
Exhibit A4 – Applicant's statement, undated.
Exhibit R1 – Respondent's statement of facts and contentions, 20 April 2001.
Exhibit R2 – Report by Dr R Kaplan, psychiatrist, 17 January 2001.
Exhibit R3 – Report by Dr G Hall, occupational physician, 17 January 2001.
Exhibit R4 – Report by Professor R P Mattick, psychologist, 27 February 2001.
Exhibit R5 – Records from Gundagai District Services Club under cover of a letter dated 3 May 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following uncontroversial findings.

The applicant was born on 9 July 1947 (T3/1) and was aged 52 when he lodged his claim.
The applicant served in the army and rendered operational service from 13 June 1967 to 26 April 1968 (T2).
The applicant lodged a valid claim on 2 February 2000 (T22, s 14(3) of the Veterans' Entitlements Act 1986 ("the Act")).
The date of effect of any decision favourable to the applicant would be 2 November 1999 (s 20(1) of the Act).
The standard of proof in relation to whether Mr Bates' alcohol dependence or alcohol abuse is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to eligibility for special rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The SoP relevant to the determination of this matter is, prima facie, SoP 76/98 concerning alcohol dependence or alcohol abuse

the issues

At the outset of the hearing Mr Dawson explained that the respondent accepts that Mr Bates suffers from alcohol abuse. This was largely confirmed by ex R1. Mr Dawson said that the respondent also accepted that Mr Bates had experienced a stressor. The outstanding issues were whether the alcohol abuse was related to Mr Bates' operational service and whether he qualified for a pension paid at special or intermediate rate.
alcohol abuse as a war-caused disease
Given the respondent's attitude to Mr Bates' claim the tribunal makes some further findings:

Mr Bates suffers from alcohol abuse as defined in clause 2(b) of SoP 76/98. Psychiatrists Drs Dinnen (ex A3) and Kaplan (ex R2), and psychologist Professor Mattick (ex R4/13) each diagnosed alcohol abuse.
The hypothesis relating Mr Bates' operational service to his alcohol abuse was that he experienced a severe stressor within the two years immediately before the clinical onset of alcohol abuse (SoP factor 5(b)). The severe stressor suggested by Mr Dawson and not challenged by Mr Modder was described by Dr Dinnen (ex A3/3). It occurred when another soldier, the company medic, was being inserted into an operation in Vietnam by helicopter. He was being winched in when the cable broke while the helicopter was still quite high. The soldier fell and landed in front of Mr Bates who was in his gun pit. The soldier was killed. The tribunal finds that the suggested severe stressor qualifies as such under the definition, "experiencing a severe stressor" in clause 8 of the SoP. Mr Bates, in the terms of that definition, was said to have witnessed an event that involved the actual death of another person and which evoked intense helplessness or horror.
The sole outstanding issue is that raised by clause 4 of the SoP which requires that Mr Bates' drinking must be related to his operational service.

The alcohol questionnaire signed by Mr Bates (T4/7A) suggested that he commenced drinking in 1966 because of peer pressure and stressful service. He was said to have consumed 12 cans a day. He said that in Vietnam, because of anxiety or nerves, he consumed a bottle of rum and six to 12 cans of beer a day, when possible. After service he said he drank every day as a sales representative, mixing beer and spirits. He could not provide a count. He said he drank to block out memories of his overseas experiences. He placed his daily intake as at 9 April 1994 at six to eight nips of spirits and four to six cans of beer.
In oral evidence Mr Bates said that the handwriting on the alcohol questionnaire was not his, although he signed it. The form was completed for him by a RSL member. He considered that he had not consumed 12 cans a day before going to Vietnam. That was "a bit exaggerated". He doubted he had drunk 84 cans of beer a week in 1966. He was married with a child. They lived in a flat in Newcastle. He could not have afforded to buy so much beer. He later told Mr Modder that he could have drunk up to 12 cans a day on some days. Mr Bates proceeded to provide a revised alcohol history. He said he was a teetotaller prior to service (ex A2, paragraph 8).
In cross-examination Mr Modder asked Mr Bates about some history taken by Dr Dinnen in which Mr Bates said he had a drink driving conviction following a binge before enlisting. Mr Bates responded that he was uncertain whether this was before he enlisted, and in any event it had not followed a binge of any sort.
After enlisting he spent time at Kapooka training. That was a "dry" camp for the first few weeks. Thereafter alcohol could be bought at the canteen. However, he could not drink too much because of training demands. There would have been two or three sessions a week where he would have drunk four or five middies.
In Vietnam Mr Bates drank rum but not a full bottle each day. He drank rum between operations in Vietnam. An operation would run for two or three weeks followed by two or three days back at base during which he engaged in heavy alcohol consumption. He was free to drink as much as he liked so long as he could control his actions. Soldiers were on permanent standby sand could not appear inebriated. There was twice monthly 24-hour guard duty, also during which there was no drinking. Mr Bates told Mr Modder that troops in Vietnam spent 22% of their time not on operations. He would drink on all of those days. He recalled that the "boozer" in Vietnam opened each day from pre-dinner until 7.30 pm. At another point he said it opened until late at night.
After Vietnam Mr Bates went to Holdsworthy for eight or nine months. He drank there as he had done in Vietnam. He had six to eight cans of beer and some spirits on five days out of seven in a week. He then went to Malaya and Singapore for a lengthy period of an estimated 20 months. His alcohol consumption rose because of the low cost and ready availability. This was not an operational service posting. He drank six to 12 cans a day and had possibly six or eight nips of rum a day. This did not impede his work performance. He was next sent to Townsville where he maintained a similar drinking pattern.
When discharged from the army he moved back to Newcastle where he initially reduced his drinking because of cost. He drank a couple of times a week and would have six to 10 cans of beer plus some wine and spirits. After a few years his consumption rose because of the customer entertainment opportunities in sales work. In T4 Mr Bates had placed his daily intake as at 9 April 1994 at six to eight nips of spirits and four to six cans of beer. In oral evidence he said that he doubted he had reduced his daily consumption in 1994. He would have been drinking wine in addition to the intake already declared. Mr Bates was confident that he had consumed at least the 40g of alcohol said by Dr L Lambeth (a psychiatrist) to be his rate of consumption in July 1994 (T5). His increased consumption resulted in some employment difficulties. He was not conscious of the increase as it occurred.
By the end of Mr Bates' working life at the Gundagai club he was drinking twice a week in sessions involving four or five schooners with 1½ bottles of wine and two or three cans of mixed drinks containing spirits. On nearly every day he had at least two to four schooners of beer, starting in the early afternoon. Recently he had reduced consumption to three or four schooners and half a bottle of wine a day. He abstains on about a day a week.
Mr Modder submitted that, while Mr Bates' alcohol consumption in Vietnam was high when commitments permitted, it was only later back in Australia at Holdsworthy that consumption really took off.
In analysing the above material in order to reach findings the tribunal applies the methodology in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. That methodology requires the identification of a hypothesis connecting operational service with the veteran's alcohol abuse. That was identified above in paragraph 22. The next step is to identify the relevant SoP. That was SoP 76/98, as identified above in paragraph 20. The third step requires consideration of whether the hypothesis, as presented is consistent with the template provided by the SoP. The tribunal finds here that the hypothesis, as presented, was consistent with the template.
For Mr Bates it has been put that he drank alcohol in service prior to operational service but that during operational service his consumption rose. Further, it was put that this occurred as a result of anxiety or nerves attributable to service. The tribunal finds that the hypothesis was consistent with the SoP. The full Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis (Bull v Repatriation Commission [2001] FCA 1832).

Mr Modder introduced or identified some material that was before the tribunal that might have the effect of making the hypothesis fanciful or which might be useful in step 4 from the Deledio case (above). This material suggested that:
(a)Mr Bates may have begun to drink, even to the extent of binge drinking, before enlisting.
(b)Mr Bates' alcohol consumption in service, but prior to operational service, may have been higher than the hypothesis suggested.
(c)Mr Bates' alcohol consumption may have increased most markedly after he returned from Vietnam.
The tribunal finds that this material is insufficient to convert the hypothesis from reasonable to fanciful. Mr Modder relied heavily on the questionnaire in T4, however, even within that document the writer proposed that Mr Bates increased his alcohol consumption in Vietnam. Within that document it was also suggested that consumption rose after Vietnam. However, the tribunal considers that that was less important than the material focusing on operational service and consumption at that time. The tribunal is inclined to accept Mr Bates' statement that he did not binge and was not prosecuted prior to enlistment. However, even if he did binge drink on one or more occasions prior to enlistment, there is nothing to suggest that this was a frequent occurrence.
The tribunal noted Dr Kaplan's assessment (ex R2) in which he said that on the balance of probabilities neither Mr Bates' alcohol abuse nor his anxiety disorder could be attributed to his military service. He tended to see genetic factors in the alcohol abuse. This opinion is, of course, of no direct use because Dr Kaplan addressed balance of probabilities issues rather than applying a reasonable hypothesis standard.
For these reasons the tribunal confirms its finding that the hypothesis was a reasonable hypothesis.
Mr Bates will therefore succeed under s 120(3) of the Act in having his alcohol abuse accepted as a war-caused disease unless, in accordance with step 4 of Deledio (above) and s 120(1) of the Act, the tribunal finds beyond a reasonable doubt that the disease was not war-caused. For reasons akin to those already canvassed in paragraph 35 the tribunal, having considered the material presented by Mr Modder, and the material overall, cannot find beyond a reasonable doubt that the disease was not war-caused. The tribunal therefore finds that Mr Bates' alcohol abuse was a war-caused disease.
qualification for special rate
Section 24 of the Act sets out the requirements for payment of a Disability Pension at special rate. Mr Bates clearly satisfied a number of the requirements:

Section 25 does not apply to Mr Bates in that he was and is not in receipt of a temporary special rate (s 24(1)(d) of the Act).
Mr Bates made a valid claim under s 14 of the Act.
Mr Bates was not 65 years of age or older when he lodged his claim (s 24(1)(aa) of the Act). He was 52 years of age.
Mr Bates' degree of incapacity was 70%, as required by s 24(1)(a)(i) of the Act.

Mr Modder accepted for the respondent that Mr Bates' accepted disabilities were such as to satisfy s 24(1)(b) of the Act. That is to say that the applicant's generalised anxiety disorder, tinea, pruritis ani and bilateral sensori-neural hearing loss with tinea, were of such a nature as, of themselves alone, to render Mr Bates incapable of undertaking remunerative work for periods aggregating more than eight hours a week. However, Mr Modder submitted that Mr Bates did not satisfy s 24(1)(c) of the Act. That provision requires that Mr Bates was, by reason of his war-caused disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and was, by reason of that, suffering a loss of salary, wages or earnings on his own account, that he would not be suffering if he were free of those disabilities.
Mr Bates' jobs had included work as a clerk and storeman for Coca Cola. He had worked also for Edgells and Schweppes. He then moved into liquor sales for two years followed in 1986 by a number of years working in the gaming industry. In 1996 he set up business in the gaming industry with a friend but the business failed (ex R2). In 1997 he became manager/secretary of the Gundagai District Services Club. In 1998 he became unemployed, picking up between six and nine jobs including one from an old boss doing gaming signage. That lasted for three months and he had not worked since finishing there. He was doing voluntary work at Spears Point RSL for two hours a week. He could not do more than that two hours, he said.
There was some concentration on Mr Bates' loss of employment at the Gundagai club. From T15, provided by the club, it appeared that the job began on 9 May 1997 and as at 20 July 1998 was tied up in the NSW Industrial Court where Mr Bates had sued for wrongful dismissal. He had lost 62 hours over the year on sick leave. He had worked 12 hours a day for a 72-hour work week. Mr Bates said that he was dismissed on 6 April 1998. He saw himself as prevented from getting work because of a medical and psychological condition (T16). In oral evidence he explained that his phobias, such as agoraphobia, had caused him difficulty in the workplace. On 25 August 1998, however, a representative from the club wrote to DVA stating that the club had received medical certificates from Mr Bates on 15 April 1998 and, prior to that, was unaware that Mr Bates had any medical problems (T17).
T17 contained also the court documents for the unfair dismissal claim. From these the following assertions were of interest:

Mr Bates was dismissed orally by club president, Mr L Mitchell, on 6 April 1998.
Mr Bates approached other club officers on that same day and told them what had occurred and how he saw the situation as a catastrophe. He told the club's office administrator that he would be absent from work until 19 April 1998.
On 14 April 1998 Mr Bates reported for work but could not enter and had been locked out. This brought on an anxiety attack and Mr Bates had to see a doctor.
Later on 14 April 1998 Mr Mitchell and another officer saw Mr Bates at Mr Bates' house and gave him a letter of suspension (which was at T17/35). He was required to attend a meeting on 17 April 1998 and show cause why his employment should not be terminated because of "irregularities in the manner in which you have instructed the office supervisor to recompense you, and other irregularities relative to your employment". Mr Bates agreed to attend, his health permitting.
On 17 April 1998 Mr Bates could not attend the meeting. He sought a postponement but that was rejected. On that day the club delivered by taxi a letter to Mr Bates setting out the allegations and requesting a written reply by 24 April 1998.
On 21 April 1998 Mr Bates wrote to the club. He sought a separation certificate and termination entitlements.
On 22 April 1998 Mr Bates spoke by phone to the club treasurer seeking a meeting with the club executive. The next day a club executive member, Mr Heaton, told Mr Bates that there would be no meeting because Mr Bates had refused to reply in writing to the club's letter of 17 April 1998.
At 9.15 pm on 24 April 1998 Mr Bates collected his belongings from the club. There was no discussion about the dispute.

On 27 April 1998 Mr Mitchell wrote to Mr Bates (T17/34) inquiring about Mr Bates' intentions noting that he had not attended that day for work, that he had refused to reply to the letter of 17 April 1998 and he had removed his belongings. He said that it seemed that Mr Bates was either resigning or abandoning his employment. On 25 August 1998 Mr Mitchell told DVA that he did not sack Mr Bates on 6 April 1998. So far as he was concerned, Mr Bates simply failed to attend work and gave no explanation.
Mr Bates' unfair dismissal action ended after two and a half years when the Commissioner ruled that the court had no jurisdiction in the matter (ex A4). The Commissioner decided that Mr Bates had not been dismissed (ex R5/20). From the NSW Industrial Relations Commission decision of 14 April 2000 it became clear that the irregularities referred to in paragraph 43 above related to Mr Bates claiming, and being paid, eight hours a week in overtime remuneration as an automatic entitlement. From that decision some additional facts emerged:

On 29 April 1998 Mr Bates wrote to Mr Mitchell seeking confirmation that he had been reinstated.
On 30 April 1998 Mr Mitchell responded denying that Mr Bates had been dismissed or threatened with dismissal and seeking answers to the letter dated 17 April 1998 for consideration by the club's board.

The Industrial Relation Commission's decision noted that Mr Bates thought he was entitled to the automatic overtime money because it had been paid to his predecessor. It found too that the club executive had been aware of what Mr Bates was doing for a year and had not queried it. From all of this it appeared to the tribunal that the most probable explanation for the cessation of work by Mr Bates at the club was a series of misunderstandings between club officers and Mr Bates brought about by a lack of clarity in the contractual arrangement between Mr Bates and the club, and by personality factors on all sides of the resulting dispute that meant that a satisfactory resolution was not possible. Viewed in this light it did not appear that Mr Bates' accepted disabilities were the sole reason for his loss of that position.
On 14 February 2000 Dr S K Law, a psychiatrist, wrote (T26) that Mr Bates' generalised anxiety disorder and alcohol abuse meant that he did not appear able to be gainfully employed at the time of writing, even for eight hours a week.
Dr A Dinnen, another psychiatrist, wrote (ex A3) on 31 January 2001 that Mr Bates suffered from war-caused generalised anxiety disorder and psychoactive substance abuse (alcohol) and that these prevented him from working more than eight hours a week. Any attempt to return to work would cause a worsening of Mr Bates' condition.
Dr G Hall, an occupational physician, wrote (ex R3) on 17 January 2001 that Mr Bates' accepted disabilities (which did not then include alcohol abuse) would not have prevented him from working more than 20 hours a week. He was doing eight hours of voluntary work a week and other family activities indicated that he would be capable of working at least 20 hours a week as at 2 February 2000 and up to January 2001.
As part of the DVA assessment for Mr Bates' Service Invalidity Pension (T14/22-23) on 18 June 1998 local general practitioner, Dr A L Clarke, considered that Mr Bates was not then able to work and that he had a major depression with great difficulty communicating in the workplace.
Much of this opinion material relates to issues arising under s 24(1)(b) which the applicant, the respondent and the tribunal all agree presents no obstacle for Mr Bates. However, there is some material on his work potential and barriers to his employability.
In T19/36B Mr Bates notified DVA that he had begun to work for Creative Magic Pty Ltd, Rosebery. He began work on 28 October 1998. In oral evidence he said that the job was for 35 hours a week. The manager and owner were happy with Mr Bates' work. The job lasted only three months, however. The job ended because it was not financially viable for the company. There was little or no growth in sales distribution and no return on investment (ex A4). He told the tribunal that he could not do the job as at 2001 because of his physical problems.
Mr Bates had made considerable efforts to find work after leaving the Gundagai Ex-Service Club. In T30 there were copies of letters of acknowledgment from a number of potential employers thanking Mr Bates for applying for jobs in 1999 and 2000. He had been called for interview in respect of only one application and was not offered the job. Mr Bates told the tribunal that he was applying on the basis of his management and financial skills. He has expertise in stock control, personnel management and finance.
The tribunal finds that Mr Bates continued to engage in remunerative employment until about January 1999 when he finished up with Creative Magic. The tribunal finds that, even allowing for the addition of alcohol abuse as an accepted disability, Mr Bates did not lose his remunerative employment with Creative Magic or at the Gundagai District Services Club only because of his accepted disabilities. However, the tribunal notes the evidence from Drs Clarke, Law and Dinnen to the effect that Mr Bates is not really suited to return to work. The tribunal puts to one side Dr Hall's opinion which was rejected even by the respondent when it accepted that Mr Bates satisfied s 24(1)(b) of the Act. The tribunal is reasonably satisfied that the difficulties for Mr Bates stemming from his generalised anxiety disorder and alcohol abuse probably contributed to the unsatisfactory history of his employment at the Gundagai club. The manner of Mr Bates' departure from that position was certainly inconsistent with his earlier stable employment record and with his self-assessment regarding the skills he can bring to managerial work. While it is credible that Mr Bates has demonstrated the skills he listed above in paragraph 53 in the past, he has not apparently been able to demonstrate them in recent years.
Mr Bates told the tribunal that feedback from unsuccessful job applications was also that his age was against him. Thus it would appear that he has been prevented from continuing to undertake remunerative work that he was undertaking partly because of his age. So far as Creative Magic was concerned, he was prevented from continuing there because of the unsatisfactory financial state of the business.
However, the tribunal considers that Mr Bates can avail himself of the so-called ameliorating provision in the Act, s 24(2)(b). In accordance with that provision the tribunal finds that:

Mr Bates has not yet turned age 65.
Mr Bates has not engaged in remunerative work since January 1999.
Mr Bates has been genuinely seeking to engage in remunerative work as is shown by his job search efforts (paragraph 53 above).
Mr Bates would, but for his psychiatric incapacities, be likely to have continued to engage in remunerative work at the Gundagai club. The tribunal finds this because the club was keen enough to recruit Mr Bates to arrange for him to move from Newcastle to take up the job. The club was also prepared to let Mr Bates work there for almost a year despite some misgivings as to how he was doing the job. In addition, Mr Bates was sufficiently motivated to make the geographical move required. The job also required the exercise of the technical and management skills Mr Bates told the tribunal he has in paragraph 53 above. The tribunal finds it more likely than not that, were Mr Bates not adversely affected by his psychiatric disabilities, he would still be working at the club.
Mr Bates' accepted disabilities, notably the psychiatric disabilities, are the substantial cause of his inability to obtain remunerative work.

Section 24(2)(b) of the Act then provides that Mr Bates is to be treated as having been prevented, by reason of the war-caused incapacity, from continuing to undertake remunerative work that he had been undertaking.
Section 24(1)(c) requires also that the veteran must have suffered a loss of salary or wages, or earnings on his or her own account, that he or she would not have suffered if free of the war-caused incapacity. The tribunal finds that this requirement has been satisfied in this case. Mr Bates lost ongoing salary or wages when he finished up at the club and with Creative Magic. There was no suggestion that he received insurance money or funds from any other source sufficient to neutralise the loss of employment income.
CONCLUSION
The tribunal has found that Mr Bates' alcohol abuse is a war-caused disease and that he qualifies for payment of Disability Pension at the special rate. He has succeeded in his application to the tribunal.
DECISION
The tribunal sets aside the decision under review and decides instead that the applicant suffers from the war-caused disease of alcohol abuse and that he qualifies for payment at the special rate. The date of effect of this decision is 2 November 1999.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  13 November 2001
Date of Decision  12 September 2002
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn & Associates, Solicitors
Advocate for the Respondent Mr S Modder, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA