Byrne and Repatriation Commission - [2000] AATA 544

DECISION AND REASONS FOR DECISION [2000] AATA 544

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/164

VETERANS'    APPEALS    DIVISION         )
           Re      PETER ROBERT BYRNE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Date3 July 2000
PlaceMelbourne

Decision      The Tribunal affirms both decisions under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – hypertension – primary osteoarthrosis left and right knees – whether war-caused – decisions (2) affirmed.
Words and Phrases
Veterans' Entitlements Act 1988, ss. 9, 120, 120A, 126, 196B
Statement of Principles Instrument No. 71 of 1996 (Osteoarthrosis) as amended by Instrument No. 336 of 1995 and 352 of 1995.
Statement of Principles Instrument No. 83 of 1995 (Hypertension)
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 49 ALD 1993
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999

REASONS FOR DECISION

3 July 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Introduction

This is an application by Peter Robert Byrne for review of two decisions of the Veterans' Review Board ("VRB"), both of which were made on 6 January 1999.
The first decision (V1996/599) affirmed the decision of the Repatriation Commission ("the respondent") dated 16 February 1996, to refuse a claim made by Mr Byrne for primary osteoarthrosis of his left and right knees.
The second decision (V1996/1270) affirmed the decision of the respondent dated 10 October 1995, to refuse a claim made by Mr Byrne for hypertension.
The VRB refused the claims on the ground that the disabilities in question were not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
It should also be mentioned that on 16 February 1996 the VRB also declined an application by Mr Byrne for an increase in pension in respect of previously accepted war-caused disabilities. In doing so the VRB decided to continue pension at 80 per cent of the General Rate. However, in a separate decision (V1996/600), which was also made on 6 January 1999, the VRB set aside the decision to continue pension at 80 per cent and substituted therefor its decision that pension be paid at 90 per cent with effect from 9 October 1995. It should be further recorded that the decision to so increase is not the subject of these proceedings. Indeed it is understood that Mr Byrne's pension has since been further increased to 100 per cent of the General Rate with effect from 22 October 1998.
Representation
At the hearing before this Tribunal Mr Byrne was represented by Mr M. O'Brien, of Counsel and Mr K. Herman, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Witnesses
Mr Byrne gave evidence during the proceedings. No other witnesses were called.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received during the hearing.
Facts Not In Dispute
Mr Byrne was born on 23 October 1945 and served in the Australian Army from 28 September 1966 to 27 September 1968. During this period he served in South Vietnam from 19 July 1967 to 13 June 1968, which period constitutes operational service.
Mr Byrne has the following war-caused disabilities:
·     Old fracture right femur with myositis ossificans;
·     Aerophagy;
·     Irritable colon syndrome;
·     Convergence insufficiency
·     Sensorineural hearing loss left ear
·     Anxiety neurosis with tension headaches
·     Lumbar disc degeneration;
·     Post traumatic stress disorder
·     Bipolar disorder
·     Panic disorder with agoraphobia.
The following disabilities have been determined not to be war-caused:
·     Internal derangement left knee with medial meniscectomy;
·     Hypertension;
·     Stomach pains, vomiting, diarrhoea;
·     Primary osteoarthrosis left knee
·     Primary osteoarthrosis right knee
·     Asthma.
As all time limits for the lodgment of application for review concerning primary osteoarthrosis left and right knees were complied with, the effective date, should Mr Byrne be successful in this part of the application, would be 9 July 1995. The application for review by the VRB of the decision regarding hypertension was lodged on 18 March 1996 which was more than three months after the Commission's decision of 10 October 1995. Therefore, the effective date for the grant of this claim would be 18 September 1995, six months prior to the lodgment of the VRB application.
Issues Before Tribunal
The issues before the Tribunal are whether hypertension, primary osteoarthrosis left and right knees are war-caused within the meaning of section 9 of the Act.
Standard of Proof
Because Mr Byrne rendered operational service the standard of proof in respect of entitlement is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:
"120. (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.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

Application of Subsections 120(1) and 120(3) of the Act – Methodology

In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:
"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in section 120(3) of the Act that "the material raise a reasonable hypothesis". The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Brynes (supra) and said at p.730:
"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

Statement of Principles ("SoP")

Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr Byrne's relevant claim was made after that date, section 120A is applicable. Subsection 120A(3) states as follows:
"(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis."
Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:
The factors that must as a minimum exist; and
Which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Subsection 196B(14) relevantly states as follows:
"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)...
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)...
(f)in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)…"

Relevant SoP

As observed by Mr Herman, this matter is affected by the decision of the Full Federal Court in Repatriation Commission v Keeley (2000)
While the respondent views Keeley as being wrong in law and has applied for special leave to appeal to the High Court, it acknowledges that under the Full Federal Court's decision these proceedings are governed by the SoP's in force at the time of the original decision. I agree that this is so. The relevant SoP's in this matter are therefore:

Instrument No. 83 of 1995 concerning Hypertension
Instrument No. 71 of 1995, as amended by 336 of 1995 and 352 of 1995 concerning Osteoarthrosis

In accordance with subsection 196B(2) of the Act, the abovementioned SoP's set out the factors that must as a minimum, exist before it can be said that a reasonable hypothesis has been raised, connecting the claimed disabilities with the circumstances of a person's relevant service. At least one of the factors set out in paragraph 1 of SoP No. 83 of 1995 and at least one of the factors set out in paragraph 1 of SoP No. 71 of 1995 (as amended), must be related to any relevant service rendered by the person.
Factor Relied Upon – Osteoarthrosis
The factor upon which Mr Byrne relies in respect of osteoarthrosis left and right knees is that which is provided for in clause 2(b)(vi) of SoP No. 352 of 1995. As indicated earlier, SoP No. 352 of 1995 amends SoP No. 71 of 1995, as amended by SoP No. 336 of 1995. The factor provided for in clause 2(b)(vi) is expressed as follows:
"2(b) for localised osteoarthrosis only,
(vi)suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis."
Pursuant to the amending SoP No. 352 of 1995 osteoarthrosis is defined as follows:
" 'osteoarthrosis' (generalised osteoarthrosis, attracting ICD code 715.0 or localised osteoarthrosis, attracting ICD code 715.1, 715.2, 715.3 or 715.8) means a heterogenous group of clinical joint disorders associated with defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following characteristics:
(a)a history of pain;
(b)impaired function;
(c)joint swelling; and
(d)stiffness."

The SoP also defines trauma to the relevant joint, as follows:

" 'trauma to the relevant joint' means a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered."

Factor Relied Upon – Hypertension

The factor upon which Mr Byrne relies in respect of hypertension is that which is provided for in clause 1(b) of SoP No. 83 of 1995. That clause states as follows:
"1. (b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension."
SoP No. 83 of 1995 states that "accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions and that:
" 'hypertension' means:
(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)where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405."
NOTE – Reference also to be made to definition of "Psychoactive Substance Abuse"

Evidence

Mr Byrne explained that when he first arrived in South Vietnam ("SVN") he served as a Rifleman, for a period of about four months.
He said that during this period of time his Unit operated in a region known as Long Green. The Viet Cong ("VC") were active in the region and following an incident in which a group of Australian soldiers were ambushed and killed, Mr Byrne's unit was deployed to conduct a sweep through the region on what he described as a search and destroy mission.
Mr Byrne stated that as a Rifleman he carried a SLR rifle plus a belt of machine gun ammunition; rations for 14 days and water. He described the load as extremely heavy.
Mr Byrne explained that his Unit was transported to the region in question by helicopter. Upon arrival he was required to jump out of the aircraft.
He stated that when he landed on the ground he experienced "incredible pain in both knees at the joint".
After landing he had to immediately assume what he described as a "defensive position", even though he found he could hardly manage to walk because of the pain in his knees. He found it "almost impossible to actually move my knees".
Although the mission initially required a search of villages in the region, his Unit then had to move into an area of swamps, the men having to wade through water which was occasionally waist high. This situation existed for about eight days. Mr Byrne stated that during this time he experienced "quite excruciating" and constant pain in both knees. He found it difficult to move quickly and consequently "I was putting other people's lives at risk".
Mr Byrne's evidence was that because of the situation with his knees the decision was made to transfer him to the Headquarter's Support Company, which he said meant that he was able to physically proceed at a slower pace.
Mr Byrne said that because of the situation with his knees he was again transferred, this time from the Support Company to a Mortar Platoon, although he said that part of the reason for the transfer was because he had received training in mortars and the Platoon was short of men. He said that he remained with the Platoon for the balance of his service in SVN, some eight months.
On 12 July 1999 Mr Byrne signed a "trauma" statement, which reads as follows:
"1.I served in the Australian Army from 28 September 1966, to 27 September 1968. I served in Vietnam from 19 July 1967, to 13 June 1968.
2.Whilst on active service, during an operation with the mortars and whilst under fire, we had to set up the fire position. Setting up the position required the movement of a large number of bombs by throwing them to each other in a chainline. On one occasion I missed the catch and the bomb, in its plastic container, hit my knees. I was in so much pain that it is hard to describe. However, I could not set down to rest but had to keep going because we all depended on each other. It took a number of days for the swelling to go down and during that time we were under constant fire and I recall being so scared that the pain in my knee was secondary to the threat of being killed.
3.On another occasion whilst on an operation as a rifleman, my knees became so bad that I was taken out of the rifle section and placed in headquarters company for the remainder of time we were in the bush. Later I was transferred to mortar platoon because of my knee."
In evidence Mr Byrne expanded on this incident, stating that, as with the Rifle Unit, the Mortar Platoon was transported to deployment areas by helicopter. He explained that "we were put down and again we had to jump out of helicopters and the material was just thrown out of the helicopter".
Mr Byrne said that every time he jumped from a helicopter "I would experience pain in both knees".
During his evidence Mr Byrne expanded on his "trauma" statement, as follows:
"And the problem – the problem was in those situations you had to keep going for the simple reason everyone depended on that everyone else would work together. And when this incident took place, we had to establish first a base plate, because we were operating at that stage -–it was either Victor or Whisky company, one of the New Zealand companies, and they were under fire, we had to get the base plate as quickly as possible established, and that was fairly swampy country there which created problems in establishing that base. We also had to move the mortar rounds, and the mortar rounds were actually packed in a plastic tube with a – and they were – you actually undone the lids to actually take the bomb out. The bomb wasn't primed, but what you would do is you'd get – from one end – you would simply throw the bombs to each other and we had some other people helping us – to try and get them into the pit before we could start – we couldn't fire them until we had them in the pit. During that operation, I actually misjudged one of the projectiles coming to me – being thrown to me – it hit me on the right knee and at that time – it was just almost like the knee just blew up. I actually sat down for a couple of seconds because it was just -–it was an instant sort of – and instant form of pain."

Mr Byrne continued, further stating:

"By then – I had to get up and keep going because we were in an almost desperate situation and once we got the mortars in and we actually bedded the mortar down, I was then able to sit down until we actually were called into action, and during that time the knee was just throbbing – it was in quite a bad way.
And it was not longer after that Victor – as I say I don't know whether it was Victor or Whisky – was actually overrun, and we were then required – we actually fired over a thousand rounds onto the actual Kiwi position, because they were actually dug in, and they were being – they were overrun at the time. We fired on them, and it was so heavy, the actual firing, and we were in the cross fire of the Viet Cong battalion and an American company, as I mentioned before. It was just a matter of getting – of dropping a bomb in and getting down before you were actually picked off yourself. It was so heavy the whole intensity of that time, that the actual mortar tube finished below ground level.
During all this period of time, my knee was in – I was at that time – I think I was number three on the mortar and it was my job at that point in time, I was the – I carried the machine gun. As number three on the mortar, my job was to carry the machine gun and the bipods the tripods, sorry, and so the incredible weight, and also once we were – when we were in operation, in action, it was my job basically to prime the mortars and that was handed to the number two on the mortar who would drop it in. The number one was the aimer. So during that period of time, as well as priming I was manning the machine gun and I didn't really have to move a great deal. I could virtually lie down or sit down in the pit."

Mr Byrne said that during this time he was experiencing "awful" pain in the right knee.

It was Mr Byrne's evidence that at no time while serving in SVN did he receive treatment or medication in respect of his knees, other than to be told to "rest and it will get better".
Since his return from service in SVN in mid 1968 Mr Byrne has been employed in what he described as sedentary positions. He has been a teacher for just on 25 years and is presently Principal of Red Cliffs East Primary School. It is observed that prior to his service in the Army, Mr Byrne first worked for a brief period as an apprentice plumber; then with the ANZ Bank. He then entered a Monastery where he remained for some six months. It was upon his leaving the Monastery that he was immediately called up for Army service.
When asked to describe the situation concerning his knees since leaving the Army, Mr Byrne stated:
"I get into situations where I can – for instance getting in and out of the car can be extremely painful. The only way I can – this is probably the best way to explain – the only way I can get into the car, and it's a Ford – it's a Falcon, is to actually go in backwards, if you like, because – and lift my knees up. They get so bad. Um, I have tried everything from hot – hot – I put the bean bag in the microwave and heat it up, to switching it to cold. I have tried – I have got a – at home I have got a electron thing that sends electrical currents through to try and stop the pain. I've tried everything. I have bottles of brufen at home which I virtually – it's part of my diet."
It is noted that Mr Byrne was seen by Dr Stone on 20 August 1999. Dr Stone is a Rehabilitation and Occupational Physician. For reasons to do with travel arrangements the consultation was apparently of necessity quite rushed, however the doctor nevertheless provided a written report for the purposes of these proceedings.
In his report Dr Stone notes that "it seems he may have had a medial menisectomy on the left". The doctor further states:
He underwent arthroscopy of the left knee 4 weeks prior to attending me. He said "the knee was scraped out".
He had also undergone surgery to the right knee 6 years ago. He also described that as "scraping" of the knee. This helped the right knee for 12 months."
It was Mr Byrne's evidence that he experienced no trouble with either knee prior to his service in SVN.
During cross-examination Mr Byrne explained that when a sweep patrol was being conducted, such as the one to which reference has been made earlier and in which Mr Byrne participated as a Rifleman, the patrol deliberately moved slowly.
Mr Byrne further explained that when on patrol as a Rifleman he would carry ammunition for the machine gun and from time to time also swap as gunman. However, because of the situation with his knees he eventually found that he was unable to keep up with the other members of the patrol and found he was holding them back. He said that "I also couldn't move with the gun to the positions as required, nor as a Rifleman could I move to any particular point that was required in emergency".
It was Mr Byrne's evidence that after he injured his knees they swelled up. However, as already mentioned, the patrol had to negotiate swampy ground which made progress very slow. There was also the need to tread carefully to avoid bamboo spikes which had been set as traps.
During the hearing the Tribunal's attention was invited to the report of Mr Byrne's medical examination prior to his discharge from the Army. The report (T4/37) at section 18 refers to his transfer "from a Rifle Company to a Support Company because of rheumatics in R thigh", during his service in SVN.
When asked whether this was the real reason for the transfer to the Support Company Mr Byrne said he was not able to give a specific answer. He did acknowledge, however, that as a child he sustained a fracture of the right femur and indeed as mentioned in paragraph 9 above the fracture (with myositis ossificans) is an accepted disability.
Mr Byrne also acknowledged that he suffered an injury to his left knee while playing squash after he had been discharged from the Army. He explained that prior to this he had been having trouble with both knees, particularly the right knee. As a result of the fall while playing squash he had the left cartilage removed.
In addition to his "trauma" statement, Mr Byrne also made a written statement concerning his use of alcohol. The statement, which is dated 25 August 1999, reads as follows:
"Prior to my call up for National Service duty, I was a monk living in a Catholic monastery. As a result of leaving the monastery and returning to work with the ANZ Bank, I was called up into the army on National Service. At this time I did not drinker (sic) alcohol, nor did I smoke. After a couple of weeks in Vietnam, as an infantryman, I was a heavy drinker and smoker. On returning to camp after an operation I would get as drunk as I could to ease to (sic) nightmares in my head. I consider now that I was under very heavy stress and the alcohol was for me a relief; I could hide. On one occasion whilst on guard duty at the Canberra Hotel in Saigon during the Teat offensive, the area around the hotel was under heavy fire; I was drunk and scared lying on my bed with a sheet over me trying to escape.
On leaving the army I continued smoking moderately for a number of years and finally stopped some twenty years ago. However drinking was another matter. I had returned to work with the bank and was living in a rented shack in the bush by myself. The shack had no power and I had found for myself an escape from reality. On arriving home each night I would drink myself to sleep. I lived like this for approximately six months and then I rented a flat in Brunswick. My heavy drinking continued for approximately another year before I started to get a hold of myself. Whilst I continued to drink, I did not get drunk so frequently. Approximately fifteen years ago I started to drink less frequently, although I would still go a (sic) binge drinking round now and then. I no longer go on drinking binges these days, however I still drink at least a bottle of red most days.
I have never told this story before, or at least the truth, because I was scared to tell the truth and to lose face with my contemporaries. By typing this letter I believe I have to some extend helped myself."
Mr Byrne also stated in evidence that he had never consumed alcohol prior to his service in SVN. In this connection he further stated that a Consultant Psychiatrist Dr Walton, who examined him on 16 March 2000 for the purpose of these proceedings, had incorrectly recorded in his report that he admitted that he commenced alcohol intake when he was 20 years of age and that his:
"consumption was on a weekly basis, typically he spending around an hour in a hotel where he would consume "a few pots". Thus military service did not mark the onset of alcohol intake."

It was Mr Byrne's assertion that when the doctor asked him whether he drank prior to going to SVN, he actually said to him "No, I did not". Indeed, Mr Byrne's further evidence was:

"and he said to me "Come on" and I wish he had of written down exactly the words because he said to me then "Surely you went to the pub at some time?". And he must have asked that same question three or four times and in the end, there is a sort of a blur in terms of "When do you go to the pub?" and I said "Okay. I have gone to the pub. I would have gone on Fridays" but it was not my answer to him initially. What he put down was what he virtually hounded me for at the point of time."

In his report Dr Walton records the history of alcohol consumption post SVN, as given to him by Mr Byrne:
"Mr. Byrne stated that after he was discharged, he returned to work in the bank but he was living in an isolated situation in a "tin shed". He describes being intoxicated most evenings and that alcoholic blackouts were not infrequent. He stated that he reached a point of subjective craving for alcohol but at no stage has he experienced any alcohol withdrawal symptoms.
Mr. Byrne indicated that it was around 15 years ago that he opted to reduce his alcohol intake as, while he had been motivated towards excessive alcohol consumption initially to blot out disagreeable memories and that his drinking was effective in that regard, he found more recently, if anything, alcohol intake tended to intensify the memories.
Mr. Byrne describes a continuing pattern of reasonably heavy intake on Friday and Saturday nights. He has shifted away from drinking beer principally to wine and he estimated that he would consume three or four bottles of wine over a weekend with, perhaps, additional beer. When not working he drinks one to two bottles of wine daily.
I note that when questioned over the years about his alcohol intake, Mr. Byrne has routinely replied that this was of moderate proportions. I have some difficulty with his more recent assertion that "I was scared to tell the truth and to lose face with my contemporaries", as it would hardly be unheard of for Vietnam veterans to develop drinking problems. However, I am certainly not indicating that I regard this former priest as having given a medico-legally convenient exaggerated account of late.
Mr. Byrne was rather vague about the details but he stated to me that he had been hospitalised on several occasions following particular drinking binges and that he had been given "needles to calm me down", as often as twice-yearly. He describes suffering from quite intense abdominal pain, to a point rendering him in a foetal position. He stated that he has not required this type of medical intervention in the past 15 years, which is at least consistent with the proposition that it may have been alcohol-related previously, he having reduced his alcohol intake over that period to date.
It is not a matter for my immediate concern but I note that there does seem to be some vagueness about when this man developed hypertension. He informed me that he had been receiving antihypertensive medication since 1990."
Turning to the issue of whether Mr Byrne's hypertension is war-caused, it is convenient to note that it is common ground between the parties that the probable clinical onset of the disability occurred in about 1984.
Mr Byrne's evidence was that although while in SVN and from time to time subsequently over the next 10 to 15 years, he was told that his blood pressure was elevated, it was not until about 1984, when his use of alcohol decreased, that he realised he was going to have to do something about his blood pressure level.
Mr Byrne's evidence was that in about 1986 or 1987 he commenced medication and that generally speaking since that time his blood pressure has remained under control.
When cross-examining Mr Byrne in connection with the issue of hypertension, Mr Herman referred to a range of blood pressure readings recorded in Mr Byrne's service and repatriation medical records. Several of the medical records also made reference to his drinking habit. Mr Herman's purpose in doing so was to demonstrate that when he became aware that he was developing high blood pressure, Mr Byrne reduced his alcohol consumption to the point where it could not be said that the requirements of factor 1(b) of SoP No. 83 of 1995 existed.
Mr Herman also drew attention to other health matters referred to in Mr Byrne's medical records. These included a letter from Mr Byrne to the Repatriation Department dated 20 September 1973, in which he refers to his attendance at the YMCA where he was given a series of exercises designed to control his weight and to help keep his "limbs strong and sound". He also referred to using the heated swimming pools, which "helps greatly in the relief of pain".
In a War Pension Medical Report dated 14 January 1975, an examining medical officer recorded that Mr Byrne was a "Non Smoker", "Non Drinker" and that he "Sleeps well". Mr Byrne maintained that the reference to him sleeping well was not correct observing that he had always had nightmares.
It is noted that on 22 January 1976 a Dietician recorded that, following referral,
"Mr Byrne was given a 1000 calorie reduction chart to help him lose weight. His intake of sugar has not been high but alcohol usually on weekends has helped contribute to his weight problem."
Mr Byrne's medical records (pension assessment review dated 8 June 1971) refer to his involvement at that time in the St Vincent de Paul Society and his membership on an Area Committee for Disadvantaged Schools. Mr Byrne stated that his involvement with the St Vincent de Paul Society was for a period of about three months only and that his membership of the Area Committee for Disadvantaged Schools, which lasted a couple of years, was "just part of his job as a teacher".
A further Departmental medical report, which appears to be dated 9 September 1980, records Mr Byrne's alcohol consumption to be on average four bottles of beer per week.
In a pension assessment review dated 16 May 1983 Mr Byrne's alcohol consumption is recorded as being "a few beers at weekends". The same report records Mr Byrne as being involved in Church activities and that he is an "avid supporter" of football.
In September 1968 Mr Byrne joined the Army Reserve. It was his recollection, however, that he served for a matter of months only and that he performed administrative duties once a week.
It was Mr Byrne's evidence that after his discharge from the Army he resumed working for the ANZ Bank until he commenced training at Coburg Teachers' College in the mid-1970's. He stated that while working for the bank following his discharge from the Army he held a responsible position in charge of Loans and Securities, but that he "really got to the alcohol" spending two afternoons per week drinking.
Mr Byrne stated that he experienced no difficulty with the Teachers' College course, passing all of his examinations without the need to repeat any subjects.
Application of SoP's – Methodology
In Repatriation Commission v Deledio (1998) 49 ALD 1993 the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:
"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

Whether Material Points to Hypothesis Connecting Hypertension and Osteoarthrosis with Circumstances of Service

After considering the whole of the material before me, I determine that such material points to a hypothesis connecting his hypertension, and to a hypothesis connecting his osteoarthrosis, with the circumstances of the particular service rendered by him.
The facts which are raised by the material and which point to a hypothesis in respect of each of the two disabilities are essentially:
(a)That Mr Byrne suffers from elevated blood pressure;
(b)That the clinical onset of his elevated blood pressure occurred in about 1984;
(c)That he has a history of alcohol consumption;
(d)That the history of his alcohol consumption commenced while serving in SVN;
(e)That Mr Byrne's suffers from primary osteoarthrosis of his left and right knees;
(f)That while serving in SVN he was required to jump from helicopters while wearing and carrying heavy equipment;
(g)That while on patrol he had to traverse areas of swampland;
(h)That while on patrol with a Mortar Section he dropped a mortar bomb which struck his right knee;
(i)That as a result of these incidents his knees became swollen and painful.

Whether There Are SoP's Determined By RMA

As I have indicated in paragraph 21 above, the RMA has determined SoP's relevant to this matter.
Whether Hypothesis Reasonable
It is my view that the hypotheses thus raised by the facts to which I have referred are reasonable, in that they each contain one of the factors which the RMA has determined to be the minimum which must exist, and be related, to Mr Byrne's service as required by subsection 196B(2)(d) and (e) of the Act. The hypotheses are consistent with the "template" to be found in the relevant SoP's.
Whether Incapacity Did Not Arise From a War-Caused Injury

As explained in Repatriation Commission v Deledio, where the Tribunal has formed the opinion that the hypothesis is a reasonable one, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
In the circumstances the Tribunal, pursuant to section 120(1) of the Act, is required to consider whether it is satisfied beyond reasonable doubt that the incapacity of Mr Byrne did not arise from a war-caused injury.
In addressing this requirement I am conscious that while Mr Byrne's recollection of where he served in SVN at any particular time was generally vague, nevertheless he was adamant that his evidence concerning the incidents which gave rise to the difficulty with his knees, is correct. However, be that as it may, and while I acknowledge that Mr Byrne was transferred from Rifleman to that of Mortarman because he was not able to keep up with patrols, the contemporary military medical record is that he was transferred away from his Rifle Company because of rheumatism in his right thigh (see paragraph 49 above). In this connection it is not in dispute that as a child Mr Byrne sustained a fracture of the right femur. Indeed, as already observed this is an accepted disability. Other than Mr Byrne's own evidence, there is no support for the proposition that he was transferred because of swelling and pain in his knees.
In the circumstances, therefore, I am satisfied beyond reasonable doubt that Mr Byrne's incapacity from osteoarthrosis did not arise from a war-caused injury. There was no "trauma to the relevant joint" as defined in the amending SoP No. 352 of 1995 (see paragraph 24 above).
Turning finally to the question of hypertension, I am likewise satisfied beyond reasonable doubt that Mr Byrne's incapacity from that disability did not arise from a war-caused injury.
While I acknowledge that there is no onus of proof placed upon Mr Byrne or the application of any presumption, nevertheless it is observed that the evidence concerning his drinking history given by him at the hearing is radically inconsistent with that recorded in medical documentation over a long period of time. Indeed, whatever his drinking habit might have been in the year or two after his return from SVN, it did not persist up to the mid-1980's.
As observed, apart from the history of his drinking habit as recorded in medical documentation, the evidence is that following his return from SVN Mr Byrne resumed employment with the ANZ Bank, performing responsible duties without any difficulty either within himself or his superiors. Again as already observed, he completed a three-year course at Coburg Teachers' College with perfectly satisfactory results throughout. As I have also indicated, the evidence is that Mr Byrne has undertaken what might be described as extra-curricular responsibilities in the form of charity work and membership of a committee concerned with the interests of disadvantaged schools.
It should also be recorded that when giving evidence Mr Byrne stated that he began to reduce his consumption of alcohol after he became aware that he was developing high blood pressure.
In view of the evidence before me I find that factor 1(b) of SoP No. 83 of 1995, which Mr Byrne relies upon, does not exist.
Decision
The decision of the Tribunal will be that both decisions under review are affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed: .....................................................................................
  Personal Assistant
Date/s of Hearing  1/6/2000
Date of Decision  3/7/2000
Counsel for the Applicant        Mr M. O'Brien
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr K. Herman
Solicitor for the Respondent    Department of Veterans' Affairs