Blake and Repatriation Commission
[2001] AATA 600
•29 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/157
VETERANS' APPEALS DIVISION )
Re VICTOR NOEL BLAKE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date29 June 2001
PlaceSydney
Decision The Tribunal varies the decision under review and decides that: 1) The Applicant's condition of ischaemic heart disease has been a war caused disability since 8 January 1999. In other respects the decision under review is affirmed. 2) The matter is remitted to the Respondent for reassessment of the rate of pension taking into account the additional war caused disability.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – war caused disabilities – disability pension – ischaemic heart disease – hypertension – acne vulgaris – operational service in Far East Strategic Reserve - Guide to the Assessment of Rates of Veterans' Pensions – whether condition meets the requirements of the relevant Statement of Principles – reasonable hypothesis that links the condition to service - consumption of an average of at least 200 grams a week of alcohol
The Veterans' Entitlements Act 1986, ss 6D(1)(b), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(1), (3), (4), 120B(1), (3)
Statement of Principles concerning Hypertension, no 64 of 1998
Statement of Principles concerning Ischaemic Heart Disease, no 80 of 1998
Davenport v Repatriation Commission [1997] FCA 918
Re Withers and Repatriation Commission [2000] AATA 990
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
29 June 2001 M J Sassella, Senior Member
HISTORY OF THE APPLICATION
Victor Noel Blake ("the Applicant") lodged a claim for Disability Pension with the Department of Veteran Affairs ("the DVA") on 24 September 1998, for "heart problems, hypertension, recurrent skin infection" (T4).
In a decision dated 28 January 1999, the Applicant's claim, reworded so that it was for ischaemic heart disease ("IHD"), hypertension and acne vulgaris, was refused by the Repatriation Commission ("the Respondent") (T2).
On 29 April 1999 the Applicant was granted a Disability Pension in respect of bilateral sensorineural hearing loss with tinnitus. The rate was 10% of the general rate.
On 8 July 1999, the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the Respondent's decision of 28 January 1999 (T9).
On 31 July 1999 a delegate in the DVA wrote to tell the Applicant that he had decided not to alter the decision under review under s 31 of the Veterans' Entitlements Act 1986 ("the Act").
In a decision dated 5 November 1999, the VRB affirmed the Respondent's decision (T13). The VRB wrote to the Applicant on 16 November 1999 to tell him of the outcome of his appeal.
On 2 February 2000, the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal", "the AAT") (T1).
The Section 37 Statement contains material relating to another claim by the Applicant for an increase in his pension (T10). This claim was lodged on 29 July 1999 and the disabilities are alcohol abuse, anxiety and deafness. On 2 December 1999 the Respondent accepted this claim in as much as it related to bilateral sensorineural hearing loss with tinnitus but rejected the claims for anxiety and alcohol abuse (T17). These rejections are not before the Tribunal as part of this application.
BACKGROUND(Much of this background comes from Dr McClure's report – Exhibit R1). The Applicant was born on 17 May 1938. Most of his childhood was spent in Perth where he had a "very good childhood". He told Dr Burns (Exhibit R2) that he left school at age 13 and worked for 12 months as a slaughterman before doing various jobs in Perth. He had an interest in radio and radio parts and followed this up.
The Applicant stated, in his initial claim form dated 24 September 1999, that he served in the Navy for the period 27 May 1955 to 17 May 1962 (T4). Records at T4, folio 31 confirm these dates. The Applicant also stated he began smoking cigarettes on a regular basis whilst serving on HMAS Sydney in September 1957, noting the reason for this as "Peer pressure, stress of being at sea, general service condition. Very nervous about going to sea first time" (T44, p22). He also noted a dramatic increase in the number of cigarettes he smoked in the following periods:
Oct 1957 – because of nerves from being at sea
Feb 1958 – because of nerves and stress
1958 to 1993 – because it had become a habit, "hooked"
The Applicant completed a DVA alcohol questionnaire on 9 November 1998 (T5) which contained the following data on his alcohol history. He began to drink alcohol in 1955 because he was "away from home, peer pressure and it was issued". He drank two or three schooners of beer two or three times a week. When he went to sea he drank whenever alcohol was available – "beer and rum". He still consumes alcohol daily in the form six schooners of beer plus the occasional spirits and wine.
The Applicant's service included operational service as follows (T8):
Operational service in Far East Strategic Reserve from 17 March 1958 to 3 April 1958
Operational service in Far East Strategic Reserve from 23 April 1958 to 13 May 1958
The Applicant has been married three times. He first married in 1962 soon after leaving the Navy. That marriage lasted seven years and produced his only child. It failed, he says, because of his drinking, his inability to settle into a regular lifestyle, and interference by in-laws. His second marriage was short-lived. His second wife had a history of schizophrenia and ultimately had to be hospitalised. He is currently married to his third wife and has been since 1977.
In the Navy the Applicant was classified as a "leading radio electrical mechanic – aircraft" (Exhibit R2). After leaving the Navy he worked briefly with companies such as AWA before beginning at Garden Island Dockyard where he worked continuously from 1967 until 1992. He was a radio and radar technician. He finished at the dockyard when he was retrenched. He was an assistant project manager at that time.
The Applicant and Mrs Blake moved to Forster where Mr Blake obtained part time then full time work with a local garbage contractor, J R Richards. The Applicant worked for four years until he went into hospital following an angina attack in May 1998.
He returned to work but his medications limited his work performance because of side-effects such as drowsiness and gastrointestinal problems. He gave up work in August 1998. He told Dr Burns (Exhibit R2) he currently acts as treasurer for at least two clubs and is looking to do the same for a third.
MEDICAL and OTHER EVIDENCE/ CHRONOLOGYThe Applicant's service records (T3) contain considerable material on medical treatment the Applicant received in the Navy. However, apart from regular treatment for acne, none is relevant to the conditions now under consideration.
Local medical officer, Dr Klein, provided comment on the Applicant's claim form (T4). He said the heart problems were IHD. He noted a recent admission to hospital (14 May 1998) associated with his IHD. The date of onset was said to be 1983. The Applicant placed the date of first awareness as May 1998. Dr Klein said that the Applicant had been treated for hypertension on and off for many years. The date of onset was placed as 1976. The recurrent skin infection was confirmed and dated from 1956.
Dr Klein also completed DVA questionnaires on Mr Blake's various conditions on 5 November 1998 (T6). Some of this material is illegible; however, some of it is instructive.
There is little new in relation to the acne condition other than an assessment of how disfiguring the condition is. Dr Klein notes that Mr Blake avoids the beach and swimming pools. Most of the noticeable effects are on his neck and back. As regards the IHD Dr Klein makes mention of a positive stress test done on 14 May 1998, cholesterol testing on 16 May 1998 and an echocardiogram on 12 June 1998. Dr Klein assesses the Applicant's level of energy expenditure at which limiting symptoms develop as 4-5 METS. In relation to hypertension, indicative blood pressure readings are: 165/95 (18 December 1997), 140/50 (24 April 1997 – this result is indistinct and this figure may not be reliable), 160/98 (26 November 1996), 150/90 (18 April 1993).
In a report dated 14 May 1998, Dr John Tapper, a physician and a locum for Dr P D Braude, a physician, wrote about Mr Blake's chest pain (T4, folio 32). He was in hospital from 9 to 11 May 1998 with severe pain. The diagnosis was unstable angina and hypertension. He was discharged with five prescribed medications.
A medical officer in DVA completed a file note on 25 January 1999 (T7) in which he says that acne vulgaris is a papulopustular inflammatory condition caused by the overproduction of sebum and sebacious duct blockage. Overproduction of sebum is androgen dependent. The cause of the disease is primarily idiopathic.
There is a report from Dr B D Parsonage, a psychiatrist, dated 15 November 1999 (T15). That report does not deal with IHD, hypertension or acne vulgaris. However, it contains information on cigarette and alcohol consumption which may be relevant to the conditions of IHD and hypertension. He records that Mr Blake began drinking alcohol in the Navy and his consumption steadily increased. He was transferred to Canberra (probably in August 1959 – T3, folio 19) by which time he was "getting blind" twice a week. When Mr Blake worked at Garden Island his drinking peaked. He drank most lunchtimes to the point where he was too intoxicated to work. He "got away with it" because he was in a supervisory position. He returned to the hotel after work and would often drink for long periods. By 1998 his drinking had tapered off and he was drinking 11 standard drinks a day. Dr Parsonage said that Mr Blake's drinking was related to his military service. His "pattern of maladaptive drinking began in the Navy and once started Alcohol Abuse/Dependence tends to be a chronic relapsing condition."
Mr Blake told Dr Parsonage that he stopped smoking in 1993.
Exhibit R1 is a report by a psychiatrist, Dr A P McClure, dated 12 April 2000 which is useful for similar reasons to the report by Dr Parsonage. Mr Blake told Dr McClure that he commenced alcohol consumption within months of first joining the Navy. He was certainly drinking heavily from around Christmas 1955. He spent Saturday nights ashore in Melbourne drinking at various hotels. When posted to HMAS Albatross (February 1957 – T3, folio 19) he had some drinks four nights a week. On weekends particularly he became intoxicated. He continued "regular drinking" in the Navy and continued at the same rate post-Navy. He never reduced but has "become more sensible". He told Dr McClure he no longer drinks if driving. Mr Blake said it would be 30 or 40 years since he had gone more than two days without alcohol. He had gone longer recently when in hospital. On an average day he drinks four schooners of beer, two glasses of wine, two glasses of spirits - the equivalent of nine to 10 standard drinks a day.
Mr Blake started to smoke when first posted to the HMAS Sydney (August 1957 – T3, folio 19). He smoked 10 cigarettes a day. He began to smoke 30 to 40 cigarettes a day later in 1957 when the Melbourne set sail. He said that cigarettes were cheap, freely available and almost everyone on board smoked. He estimated that he was by then smoking 30-4- cigarettes a day. This rate of consumption continued for the rest of his naval career. He gave up abruptly in 1994 because he became worried about his health. In a supplementary report dated 26 July 2000 (Exhibit R5) Dr McClure says that the cigarette consumption figures in Exhibit R1 are consistent with the Applicant's claims in his smoking questionnaire. He also wrote:
"In conditions of operational service aboard naval ships, it might be reasonable to assume that factors such as uncertainty regarding the possibility of an attack in hostile waters, boredom (the crew would often have been 'closed up' in defence watches) and the availability of cheap, duty free cigarettes, might have contributed to a significant increase in a sailor's smoking habit."
The smoking questionnaire is at T4, folios 22-23. In that document Mr Blake stated that he first started smoking on a regular basis on the HMAS Sydney in September 1957. He smoked three to five cigarettes a day. He started smoking because of "peer pressure, stress of being at sea, general service conditions, very nervous about going to sea first time". He said he stopped smoking in 1993. Cigarette consumption rose to 20 a day in October 1957 because of nerves and at sea. It rose to 30 a day and pipe usage of two ounces of tobacco a week in February 1958. This was because of nerves and stress and gunfire in the Sunda Straits. It rose to 30-35 a day, with pipe tobacco at two ounces a month and cigars on occasions. This was because of "habit hooked".
Dr Mark Burns, occupational physician, wrote a report dated 12 April 2000 (Exhibit R2). He had the following to say about the Applicant's IHD. The problem commenced with the angina attack on 9 May 1998. Mr Blake realised then that he had had chest pain on and off for three or four years before that. He is on medication. He has occasional chest pains with activity. He develops shortness of breath if he goes up or down stairs too quickly or if he vacuums too hard.
He gave a smoking history of commencing when the Melbourne went to sea in 1957. He smoked three to five cigarettes a day and up to 10 cigarettes on a bad day. By October 1957 his cigarette consumption rose to "probably" 10 to 20 cigarettes a day. From February 1958 it rose to probably 30 a day. He also commenced smoking a pipe and went through two ounces of pipe tobacco a week. This level of smoking endured from 1958 to 1994. He also smoked cigars occasionally. He ceased smoking in 1994 as he had developed a cough and some shortness of breath on activity. He had commenced smoking because everyone smoked at the time and it was "traditional for sailors to smoke and drink grog." Cigarettes were very cheap.
Mr Blake's hypertension is well controlled. Mr Blake's acne vulgaris afflicted him before he joined the Navy. It was much worse when he was at sea and in tropical areas due to the heart and humidity. He takes a medication for this condition. It manifests itself these days in cysts on his neck and back. Dr Burns provided a GARP (Guide to the Assessment of Rates of Veterans' Pensions (5th edition)) impairment rating of 6 points with only the accepted disability of hearing loss taken into account. With IHD, hypertension and acne vulgaris the rating is 53 points. The lifestyle rating is 4 if all possible disabilities (including alcohol dependence and generalised anxiety disorder) are taken into account.
Associate Professor David Richards, a cardiologist, provided a report dated 9 May 2000 (Exhibit R3). Professor Richards addresses cigarette and alcohol use but in less detail than the other experts. He records the Applicant's current alcohol consumption as six schooners of beer a day, four glasses of wine and various spirits. Mr Blake told Professor Richards that he presently experiences chest pain at approximately 200 metres walking on the flat. He would experience discomfort attributable to his heart at 4-5 METS. On examination his blood pressure was 140/80 and pulse was regular at 80/minute. Heart sounds were dual. The chest was clear. There was no dependent oedema. An electrocardiogram showed a number of things including changes consistent with previous old anterior infarction.
Professor Richards diagnosed hypertension (from about 1976) and IHD (from about 1994). IHD "was probably aggravated by smoking, not associated with operational service". He finds that alcohol consumption is not associated with operational service.
RELEVANT LEGISLATIONRelevant legislation is found in the Act at ss 6D(1)(b), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(1), (3), (4), 120B(1), (3):
"6D Operational service - other post World War 2 service
(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
…
(b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
…""7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…"9 War-caused injuries or diseases
(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;
…"
"13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…""14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
…(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…""20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q (1A).
Note 2: This subsection is affected by section 120A.
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
…(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…."
Also relevant are the Statements of Principles ("SoPs") 80 of 1998 concerning IHD and 64 of 1998 concerning hypertension.
Statement of Principles concerning Hypertension, no 64 of 1998
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about hypertension and death from hypertension.
(b) For the purposes of this Statement of Principles, "hypertension" means elevated blood pressure, evidenced by:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b) administration of antihypertensive therapy, excluding temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, hypertension due to medications or hypertension associated with eclampsia or pre-eclampsia, attracting an ICD-9-CM code in the range 401 to 405.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
…
(b) suffering from alcohol dependence or alcohol abuse involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks), at the time of the accurate determination of hypertension; or
…
Other definitions
8. For the purposes of this Statement of Principles:
"accurate determination of hypertension" means establishing the diagnosis of hypertension by the accurate measurement of blood pressure on a number of occasions. As stated in the document 'The Management of Hypertension: a consensus statement' published in The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain accurate measurement of blood pressure, the conditions for measurement should be standardised as much as possible before readings by ensuring the following:
· a mercury sphygmomanometer should be used in the diagnosis of hypertension;
· patients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
· the bare arms should be supported and positioned at heart level;
· a cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. the bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
· the cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
· in older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudo-hypertension);
· the cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
· if initial readings are high, several further readings should be taken after five minutes of quiet rest;
· on each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used.
Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
· For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;
"alcohol abuse" means the presence of a maladaptive pattern of alcohol use manifested by recurrent and significant adverse consequences related to the repeated use of alcohol;
"alcohol (contained within alcoholic drinks)" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
"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;
…
"clinical worsening of hypertension" means clinically significant worsening of hypertension, which for example requires a change in medication to deal with the clinical worsening;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…"
Statement of Principles concerning Ischaemic Heart Disease, no 80 of 1998
"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b) For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure, attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
(a) the presence of hypertension before the clinical onset of ischaemic heart disease; or
…
(e) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease;
or
…
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"cigarettes per day or the equivalent thereof, in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;
…
"hypertension" means elevated baseline blood pressure, evidenced by:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b) administration of antihypertensive therapy;
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…"
HEARING AND APPEARANCES
The Tribunal convened a hearing on 23 January 2001. Mr Adam Halstead of the NSW Legal Aid Commission represented the Applicant. Mr Stephen Modder of the DVA represented the Respondent.
DOCUMENTARY EVIDENCEThe Tribunal had before it the following documents which were admitted into evidence:
Exhibit TD1 – Section 37 Statement and associated T documents provided by the DVA, 10 March 2000.
Exhibit A1 – Statement by the Applicant, "Smoking History", 27 July 2000.
Exhibit A2 – Sample of Applicant's handwriting.
Exhibit A3 – Applicant's amended statement of facts and contentions, 12 September 2000.
Exhibit R1 – Report by Dr A P McClure, psychiatrist, 12 April 2000.
Exhibit R2 – Report by Dr M Burns, occupational physician, 12 April 2000.
Exhibit R3 – Report by Associate Professor D Richards, cardiologist, 9 May 2000.
Exhibit R4 – Report by service historian, Mr G Curnow, 13 June 2000.
Exhibit R5 - Report by Dr A P McClure, psychiatrist, 6 July 2000.
Exhibit R6 – Respondent's amended statement of facts and contentions, 24 August 2000.
APPLICANT'S EVIDENCE
The ambit of the Applicant's case, as derived from Exhibit A3, is that the conditions of IHD, hypertension and acne vulgaris should have been accepted as war caused disabilities. The relevant SoP in respect of IHD is SoP 80 of 1998. Factor 5(e), relating IHD to smoking, is relevant. The relevant SoP for hypertension is SoP 64 of 1998. As regards acne vulgaris, the Respondent had conceded that a reasonable hypothesis exists to link the condition with operational service. This is conceded in the Respondent's statement of facts and contentions (Exhibit R6).
Mr Blake in Exhibit A1 provided a smoking history. The history was:
He did not smoke before enlisting. He enlisted at age 17.
He started to smoke when he went to sea on the HMAS Sydney at age 19. So long as the ship was in Australian coastal waters there was no stress. He also spent shore leave with parents who did not approve of smoking. He therefore did not smoke very much until the ship left for Asia. He smoked about three cigarettes a day at first with a gradual increase over six months to around 10 a day.
He smoked because cigarettes were duty free. He was lonely, bored, most people smoked and he was anxious about going to sea for the first time. He was worried about "going into the war". The Melbourne was an operational ship with a full complement of aircraft. The planes flew in two shifts. When they were flying the ship was at action stations. There was much more tension on the ship. The ship was heading for Singapore at the time of the communist uprising. Within a week of leaving Australia the Applicant was smoking 30 cigarettes a day.
At sea the Applicant continued smoking 30 cigarettes a day, plus a pipe. After coming ashore in 1958 he continued smoking at the same level.
At the Garden Island dockyard the smoking increased to 45-50 a day. Life was again stressful as he was trying to gain promotion and earn more money. He was working hard and studying at night.
The Applicant ceased smoking on 25 June 1994. He had not been feeling well. He had a cough and difficulty breathing. His wife, who had serious heart problems, gave up smoking at the same time.
Mr Halstead took the Applicant through his evidence which was essentially that in Exhibit A1.
In cross-examination Mr Modder, for the Respondent, pressed that the Applicant had been in the Navy for three years before he was sent to the Far Eastern Strategic Reserve. The Applicant had very short operational service, 17 days from mid-March 1958 and 20 days from late April 1958. This involved only 17 days at war.
The Applicant agreed that he had signed the DVA smoking questionnaire but that someone else filled it out for him. The questionnaire says that he smoked 30-35 cigarettes a day between 1958 and 1963 whereas Exhibit A1 says that he smoked 45-50 cigarettes. The Applicant could not explain the discrepancy except that he thought he may have given the figures for the questionnaire over the telephone. He said that the October 1957 figure in the questionnaire is wrong. It should be three a day. He agreed that the firing in the Sunda Strait was some miles away and the ship was not struck.
The Applicant said that cigarettes were virtually handed out to sailors by the Salvation Army and Red Cross. He knows of no one in the Navy in those days who did not smoke. He again stressed cost (low), peer pressure, apprehension when leaving Fremantle to sail overseas as reasons he smoked. Mr Modder stressed that the ship was not involved in combat. The Applicant said in response that they were at action stations and problems could arise at any time. He found smoking on the flight deck and on watch calmed his nerves.
The Applicant's near family followed him as smokers. Almost all his workmates were smokers. The Applicant told Mr Halstead in re-examination that he feels he could have given up smoking when he left Fremantle. He became addicted later.
As regards drinking, the Applicant said he customarily smoked while drinking. He now drinks without smoking. He began to drink before he began smoking. He drank only a little before 1957 but his drinking developed after Singapore.
Mr Halstead summarised the Applicant's case. The Applicant had operational service on the HMAS Melbourne. This is a reasonable hypothesis case. The Tribunal would have to be satisfied beyond reasonable doubt that the hypothesis is inapplicable before it can find in the Respondent's favour. He submitted that the Applicant's situation meets factor 5(e) of SoP 80 of 1998 concerning IHD. The Applicant was smoking at least five cigarettes a day for at least a year before the clinical onset of IHD. Professor Richards placed the clinical onset of IHD as in 1994. The requirement that service must have caused the Applicant to smoke is made out by Dr McClure's evidence in Exhibit R5.
Mr Halstead submitted that the smoking history in Exhibit A1 is likely to be more accurate than the history in the DVA questionnaire which was completed by someone other than the Applicant. Exhibit A1 indicates that it was operational service that brought about a sustained increase in the Applicant's smoking.
Thus the reasonable hypothesis is that it was operational service that caused the Applicant to smoke at least five cigarettes a day for at least a year before the clinical onset of IHD. It is not possible to conclude beyond a reasonable doubt that this chain of events did not occur.
As regards hypertension Mr Halstead argued that the Tribunal should decide on the papers that the condition is war caused. He referred to the blood pressure readings covering 1993-1997 in T6 (folio 39). The cause is the Applicant's excess alcohol consumption.
The applicable SoP concerning hypertension is SoP 64 of 1998. Factor 5(b) applies, requiring alcohol consumption of an average of at least 200 grams a week of alcohol (contained in alcoholic drinks) at the time of the accurate determination of hypertension.
RESPONDENT'S ARGUMENTMr Modder submitted that the Applicant had only 37 days of operational service, 17 days of which were spent in port. He saw no combat. He was aware of only distant firing. This is borne out in the historian's report (Exhibit R4).
Mr Modder referred to the cigarette smoking questionnaire (T4, folios 22-23) for the proposition that the Applicant's tobacco usage had reached 30 cigarettes a day plus pipe smoking even prior to operational service. There was a minor, if any, rise in the Applicant's smoking after operational service commenced. The histories taken by Drs Burns and McClure are similar to the questionnaire on this question of tobacco usage.
Mr Modder cited the Federal Court decision in Davenport v Repatriation Commission [1997] FCA 918. That was a case concerning cerebrovascular accident allegedly caused by smoking which commenced or was accelerated during operational service. The applicant had only 20 days of operational service. His evidence was found by the Tribunal to be unreliable. The Tribunal held that it was satisfied beyond a reasonable doubt that the hypothesis was not reasonable. On appeal to the Federal Court the Tribunal decision was upheld. Heerey J said:
"The Tribunal was quite entitled to consider as part of its assessment of the reliability or otherwise of the applicant's oral evidence the fact that he had suffered a stroke and memory loss. I need hardly add that this is in no way any moral criticism of the applicant but it was a fact which the Tribunal could not ignore. Moreover, the Tribunal referred to the contradictions in the evidence that he had given at different stages. This was plainly a matter going to the credibility or otherwise of his evidence. Also, the Tribunal was entitled to look at the inherent probability or otherwise of the applicant's case and take into account the fact that his case involved isolating a very short period of his naval service as the period at which the temporal connection between his smoking and war service was established." (emphasis added)
Mr Modder referred to two other cases, one of which may be instructive. In Re Withers and Repatriation Commission [2000] AATA 990 the applicant's hypothesis that the veteran's cancer of the bladder was caused by smoking during operational service was not accepted by the Tribunal. The Tribunal noted that the veteran was over 32 years of age when he enlisted and before service he had smoked 10 to 20 cigarettes a day. The Tribunal was satisfied beyond a reasonable doubt that, if the veteran was a smoker, his habit was well established by the time he enlisted.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THE FINDINGSThe Tribunal finds that the Applicant rendered operational service for a total period of 37 days (T8).
As Exhibit R4 shows, the HMAS Melbourne was in port in Singapore or Hong Kong on at least 17 of those days. Additionally, Exhibit R4 suggests that the Melbourne would have been exercising or on patrol for only 12 days at the greatest while Mr Blake was on board. Exhibit R4 casts some doubt on certain other aspects of the hypothesis. There is no evidence of Indonesians firing at passing ships in the Sunda Strait at the time. Indonesia was not, in March to May 1958 in a state of confrontation with Malaya. The reports of proceedings of the HMAS Melbourne indicate no stressful situations faced the ship during Mr Blake's time on board. The Tribunal finds that the nature of the Applicant's operational service is reliably described in this evidence from Exhibit R4.
The Tribunal finds that the Applicant lodged on 24 September 1998 a valid claim for his Disability Pension to reflect as war caused the conditions of IHD, hypertension and acne vulgaris (T4).
The Tribunal notes that this is case where the standard of proof is the reasonable hypothesis standard in s 120(1) and (3) of the Act.
The Tribunal finds that the relevant SoPs are SoP 80 of 1998 concerning IHD and SoP 64 of 1998 concerning hypertension.
The Tribunal will consider the IHD disability first. In reasonable hypothesis cases the approach to be taken by a decision maker is that laid down by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at page 206. The hypothesis is that the Applicant's operational service prompted him to increase his smoking to the extent required by the SoP on IHD, ie at least five cigarettes a day for at least a year before the clinical onset of IHD.
There is a SoP related to IHD. The hypothesis fits the template provided in the SoP. That is to say, the Tribunal observes that the hypothesis involves the Applicant having smoked at least five cigarettes a day for at least one year immediately before the clinical onset of IHD.
The final step in the Deledio analysis is for the Tribunal to ask itself whether it can be satisfied beyond a reasonable doubt that the requirements, or any of the requirements, in the SoP do not apply.
The SoP imposes the following requirements:
The Applicant must suffer from IHD as defined in paragraph 2(b) of the SoP.
If the Applicant has IHD, the date of clinical onset of IHD must be established (factor 5(e)).
The Applicant must have smoked at least five cigarettes a day (or the equivalent in other tobacco products) for a period of at least one year immediately before the clinical onset of IHD (factor 5(e)).
The cigarette smoking must be related to the Applicant's operational service (paragraph 4).
The Applicant must suffer from IHD as defined in paragraph 2(b) of the SoP.
The Tribunal finds that the Applicant has the disability of IHD as defined in the SoP. The definition includes angina. The Applicant has had a serious angina episode (Drs Klein, Tapper and Burns) and possibly an old anterior infarction (Professor Richards).
If the Applicant has IHD, the date of clinical onset of IHD must be established (factor 5(e)).
The Tribunal notes the evidence as to clinical onset. Dr Klein places it as 1983. Professor Richards places it as 1994. Dr Burns records that the Applicant's history was that he had chest pain on and off for three or four years before 1998. The Tribunal would be inclined to prefer the opinion of the Applicant's treating doctor where there is such a discrepancy. However, it does not matter in applying the SoP which date is selected. Nevertheless, the Tribunal makes the formal finding that the clinical onset was 1994 on the basis of the evidence of Dr Burns and Professor Richards. The Applicant moved to Forster in 1992. Dr Klein works in Tuncurry (near Forster) and would normally be best acquainted with the Applicant's medical conditions. However, in Mr Blake's case this is so only after 1992. In this instance the Tribunal considers that the histories taken by Dr Burns and Professor Richards would be reliable because of their expertise in obtaining histories. The Tribunal therefore accepts 1994 as the date of clinical onset.
The Applicant must have smoked at least five cigarettes a day (or the equivalent in other tobacco products) for a period of at least one year immediately before the clinical onset of IHD (factor 5(e)).
If the date of onset of IHD is 1994, in 1993 the Applicant must have been smoking at least five cigarettes a day. The Applicant's was that he was smoking 40-50 cigarettes a day when he gave up in 1994 and that he had been smoking in that quantity since 1967. The Applicant's smoking questionnaire at T4 suggests he was smoking 30-35 cigarettes a day in 1993 with some additional pipe and cigar smoking. Even if that be true, as was pressed by Mr Modder, it is still considerably in excess of the consumption required by the SoP.
The Tribunal finds that the Applicant's cigarette consumption satisfies the requirement in factor 5(e) of the SoP.
The cigarette smoking must be related to the Applicant's operational service (paragraph 4).
If there is an Achilles heel in the Applicant's case, this is it. The Respondent at T8 decided that the Applicant had commenced his smoking habit prior to eligible service. The delegate decided that the smoking habit was not causally related to service. This was on the basis that the Applicant was smoking 30 cigarettes a day from 1 January 1958 when operational service did not commence until 17 March 1958.
The VRB agreed with the Respondent on this matter, relying again on the smoking questionnaire (T13).
Exhibit A1, the Applicant's more recent statement, dates the real increase in his smoking from the time when his ship headed for Asia. "Within a week of leaving Australia I was smoking 30 cigarettes daily."
Exhibit R4, the historian's report, is not very helpful. It certainly means that the Applicant had access to cigarettes in quantity while on operational service. However, that report is helpful in casting doubt on just how stressful service on the HMAS Melbourne would have been during Mr Blake's time on the ship. It seems that the environment for the ship was relatively tranquil at the time.
The Tribunal has some doubts about the Applicant's evidence in Exhibit A1. It is certainly convenient to the Applicant's case that he has had this level of recall, albeit after obtaining legal assistance. It is noted that even the smoking questionnaire contains potentially doubtful material about firing in the Sunda Strait, to judge from Exhibit R4. However, the Tribunal finds that it cannot be satisfied beyond a reasonable doubt that the Applicant's version of events is not to be believed.
The Tribunal found the Davenport case (supra) interesting. The point about the short period of operational service was well put by Mr Modder with support from Heerey J in that case. However, in that case there were many areas in which the applicant's evidence was clearly unreliable. That is not so here. Indeed, the Tribunal was impressed by the Applicant when he gave his oral evidence. He seemed to be doing his best to speak truthfully and resisted cross-examination on his statement in Exhibit A1 quite successfully. He was able to explain his reasons for his confidence as to how much his tobacco consumption rose and when it rose. The Tribunal is prepared to accept that the Applicant found service in foreign waters stressful even if the external threats were not really there at the time. He was only 19 years of age at the relevant time.
The Tribunal also considered the Withers case (supra) to have been well selected for argument by Mr Modder. In another situation it might have been directly applicable. However, here the Applicant was a much younger man with considerably less of a smoking history than the veteran in that case.
The Tribunal has therefore found that the Applicant's smoking was relevantly related to his operational service.
Turning now to the claim for hypertension, the hypothesis is that the Applicant's operational service-related alcohol consumption led to him developing hypertension.
There is a SoP concerning hypertension, SoP 64 of 1998.
The template provided in the SoP involves the Applicant suffering from alcohol abuse or alcohol dependence sounding in consumption of an average of at least 200 grams a week of alcohol (within drinks) at the time of accurate determination of hypertension. This is effectively the hypothesis advanced for the Applicant.
It will be necessary for the Tribunal to be satisfied beyond a reasonable doubt that the hypothesis is not reasonable if the Applicant is to fail in this claim. This will be the case if the Tribunal is satisfied beyond a reasonable doubt that any of the requirements in the SoP are not satisfied.
The requirements in the SoP are as follows:
The Applicant must suffer from hypertension as defined in paragraph 2(b).
The time of the accurate determination of hypertension must be identified (factor 5(b)).
The Applicant must suffer from alcohol dependence or alcohol abuse at the time of accurate determination of hypertension (factor 5(b)).
The Applicant must be consuming 200 grams a week of alcohol at the time of the accurate determination of hypertension (factor 5(b)).
The Applicant's alcohol abuse and consumption must be related to the Applicant's operational service (paragraph 4).
The Applicant must suffer from hypertension as defined in paragraph 2(b).
The Applicant has been diagnosed as suffering from hypertension since 1976 (Dr Klein, Professor Richards, Dr Tapper). The SoP definition requires blood pressure readings where the systolic reading is 140 or higher and/or the diastolic reading is 90 or more. Dr Klein's answers on hypertension in T6 refer to readings between 1993 and 1997 that comply with the definition. An alternative method of satisfying the definition is to point to the administration of antihypertensive therapy. The Applicant satisfies this requirement also. Professor Richards records that, "[the Applicant] said that he had been treated with … Betaloc and Coversyl for hypertension in approximately 1998. In his report 10 September 1998, Dr. D. Klein (General Practitioner) wrote that Mr. Blake had received treatment on and off for hypertension since 1976."
The Tribunal finds that the Applicant suffers from hypertension as required by the SoP.
The time of the accurate determination of hypertension must be identified (factor 5(b)).
The SoP defines when it can be said that there has been an accurate determination of hypertension. Paragraph 8 contains that definition which, in essence, is "establishing the diagnosis of hypertension by the accurate measurement of blood pressure on a number of occasions". Dr Klein has provided material in T6 sufficient to satisfy this requirement as at 1997 at the latest. The Applicant's hypertension was apparently diagnosed as early as 1976 (Dr Klein, Professor Richards), but the Tribunal has no series of blood pressure readings from that era to satisfy the SoP.
The Tribunal finds that the date of accurate determination of hypertension was 18 December 1997 (T6, folio 39).
The Applicant must suffer from alcohol dependence or alcohol abuse at the time of accurate determination of hypertension (factor 5(b)).
There are definitions of "alcohol abuse" and "alcohol dependence" in paragraph 8 of the SoP. Abuse means the presence of a maladaptive pattern of alcohol use manifested by recurrent and significant adverse consequences related to the repeated use of alcohol. Dependence refers to the presence of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. Self-administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
It is necessary to consider the psychiatric assessments to see whether these features existed in December 1997.
Dr Parsonage (T15) diagnosed the Applicant as suffering from "alcohol dependence in sustained partial remission and generalised anxiety disorder". He commented that when drinking most heavily the Applicant had exhibited tolerance and his work was reduced because of intoxication. By 15 November 1999 "he no longer satisf[ied] the criteria for Substance Dependence but satisfie[d] at least one of the criteria for Substance Abuse, being arguments 'with spouse about consequences of intoxication'". Dr Parsonage says that the Applicant's maladaptive drinking began in the Navy and once started alcohol abuse or dependence tends to be a chronic relapsing condition. "His drinking is therefore related to his military service."
Dr McClure said on 12 April 2000 (Exhibit R1) that the Applicant was "currently overusing alcohol, but he does not meet the diagnostic criteria in the DSM-IV for 'Alcohol Abuse'". This is because:
"… within the past 12 months, there have been no legal problems; no recurrent social or interpersonal problems; no failure to fulfil major role obligations; nor any alcohol use in situations in which it could be physically hazardous (including driving).
"Mr Blake's alcohol overuse began in a service context, probably in 1957 (prior to his operational service). Nothing in the history suggests that there was any psychiatric disorder at that time, nor has he ever experienced a 'severe stressor'. Thus Factors 5(a) and 5(b) in the Statement of Principles regarding Alcohol Abuse/Dependence are not relevant to this veteran."At this point it should be noted that the definitions of alcohol abuse and alcohol dependence in the relevant SoP do not require that there must have been a severe stressor.
Dr Burns (Exhibit R2) comments on Dr Parsonage's assessment. He says, "He also diagnosed alcohol dependence in sustained partial remission. After taking Mr Blake's alcohol history today (12 April 2000), I am surprised that it could be said that he is in even partial remission." However, Dr Burns does not take this any further and does not clearly substitute a diagnosis of his own.
The Tribunal is inclined to accept Dr Parsonage's opinion that the Applicant demonstrates alcohol abuse. He was able to identify one of the DSM-IV criteria as satisfied. At the same time Dr McClure seemed to be addressing the criteria that appear in a different SoP and finding them not satisfied. The Tribunal notes also that, if Dr Burns was surprised by Dr Parsonage's diagnosis (in that it suggested a remission), he would be even more surprised by Dr McClure's assessment.
The Tribunal is aware of paragraph 7 of the SoP. That paragraph says that where a relevant factor includes a disease in respect of which there is a SoP then the factors in that other SoP have to be satisfied. In the present case this could mean that the Applicant's situation has to satisfy the SoP on psychoactive substance abuse or dependence. However, given that the SoP on hypertension defines alcohol abuse and alcohol dependence for the purposes of the present SoP that express provision would seem to mean that there is no requirement to address the SoP on psychoactive substance abuse or dependence at this time.
The Tribunal finds that the Applicant was suffering from alcohol abuse at the time of the accurate determination of hypertension.
The Applicant must be consuming 200 grams a week of alcohol at the time of the accurate determination of hypertension (factor 5(b)).
From Dr Parsonage's report (T15) it appears that the Applicant was drinking the equivalent of 11 standard alcoholic drinks a day in the late 1990s. From the definition of "alcohol (contained within alcoholic drinks)" in paragraph 8 of the SoP, 11 drinks equals 110 grams of alcohol. Thus the Applicant appears to have consumed alcohol at the rate of some 770 grams a week in the late 1990s, well in excess of the SoP requirement of 220 grams a week.
Dr McClure took a history of consumption at a level of 90 to 100 grams of alcohol a day. Even the lowest of these figures is well in excess of the SoP requirement.
The Tribunal therefore finds that the Applicant consumed at least an average of 200 grams a week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension.
The Applicant's alcohol abuse and consumption must be related to the Applicant's operational service (paragraph 4).
The VRB decided (T13) that, as the veteran commenced drinking three years before eligible service and increased consumption the year before, a causal relationship with service did not exist.
The Respondent at T8 did not consider any possible link between alcohol consumption and hypertension because the Applicant had not suggested such a link when he claimed.
It is necessary to see what effect, if any, the Applicant's operational service between 17 March 1958 and 13 May 1958 had on the Applicant's drinking pattern. The alcohol questionnaire (T5) is unhelpful as it relates an increase to "when I went to sea" and it does not suggest quantities. Dr Parsonage's report (T15) seems to see the precipitate increase in consumption as just prior to the Applicant's assignment to HMAS Harman in August 1959. Dr Parsonage relates the Applicant's drinking to his time in the Navy generally and he expresses no opinion in relation to the period of operational service.
Dr McClure (Exhibit R1) was given no history by the Applicant suggesting an increased consumption during operational service.
The Applicant's history as retold by Dr Burns (Exhibit R2) includes:
"Mr Blake stated that he commenced drinking alcohol soon after he joined the navy. He drank mostly on shore leave as he was restricted at sea. He initially drank beer and a few rums per day. He found, though, that when he was aboard the HMAS Sydney in 1957 that they were anchored in the islands up in the Barrier Reef and that alcohol was freely available. He reported that when he was on shore leave he would drink until he was drunk. He has continued at this high level ever since his military service."
The Tribunal finds this decisive evidence that the pattern of the Applicant's drinking was settled between August and October 1957 when the Applicant was on the HMAS Sydney. That was part of the quite considerable evidence he gave Dr Burns whose report appears to reproduce the given history fully and faithfully. The Applicant appears to have had ample opportunity to identify for Dr Burns aspects of the period of operational service prompting him to drink more heavily but he did not do so.
The Tribunal therefore finds that it is satisfied beyond a reasonable doubt that the Applicant's alcohol abuse and alcohol consumption is not related to his operational service.
The Tribunal therefore finds that it is satisfied beyond a reasonable doubt, under s 120(1) of the Act, that there is no sufficient ground for determining that the Applicant's hypertension is a war caused disease.
The Tribunal has examined the other factors in the SoP that might link the Applicant's service with his hypertension but has found none that, on the current evidence, call in aid any other factor in paragraph 5.
The Applicant's other condition, acne vulgaris, was not the subject of any argument before the Tribunal. The Tribunal understands that the Respondent has decided that this is a war caused disability. The Tribunal, at the Applicant's request at the hearing, makes no findings in relation to this condition.
ConclusionThe Tribunal has found that the Applicant's condition of IHD is a war caused condition. The Tribunal has found that the Applicant's hypertension is not a war caused disability. The Tribunal has made no finding in relation to acne vulgaris.
The date of effect of the decision concerning IHD is 8 January 1999 (Exhibit A4).
DecisionThe Tribunal varies the decision under review by finding that the Applicant's condition of ischaemic heart disease has been a war caused disability since 8 January 1999. In other respects the decision under review is affirmed.
The matter is remitted to the Respondent for reassessment of the rate of pension taking into account the additional war caused disability.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 23 January 2001
Date of Decision 29 June 2001
Representative for the Applicant Mr A HalsteadRepresentative for the Respondent Mr S Modder
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