Cant and Repatriation Commission
[2001] AATA 482
•5 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 482
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1999/1230
VETERANS' APPEALS DIVISION )
Re Albert Charles CANT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date5 June 2001
PlaceSydney
Decision The Tribunal: 1. sets aside that part of the decision of the Repatriation Commission dated 12 October 1998 that determined that the condition of ischaemic heart disease suffered by Albert Charles Cant ("the Applicant") was not war-caused, and that part of the decision of the Veterans' Review Board dated 2 July 1999 that assessed pension payable to the Applicant at 90 percent of the General Rate on and from 8 October 1998; and 2. substitutes for those parts of the decisions so set aside, its decision that: (a) the Applicant's condition of ischaemic heart disease is war- caused; and (b) pension is payable to Applicant at the Extreme Disablement Adjustment Rate with effect on and from 8 July 1998.
..............................................
M T Lewis,
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – reasonable hypothesis – Statement of Principles applied – whether Applicant's ischaemic heart disease was war-caused – Applicant suffered from war-caused post traumatic stress disorder –– Applicant suffers from hypertension - whether Applicant meets relevant factor 1(b) in Statement of Principles for Hypertension "suffering from alcohol dependence or alcohol abuse" –- whether hypothesis disproved beyond reasonable doubt
Veterans' Entitlements Act: subss120(1), 120(3), 120A
Statement of Principles , Instrument No.64 of 1998 (Hypertension)
Statement of Principles, Instrument No. 140 of 1996 (Ischaemic Heart Disease) as amended by No. 77 of 1997
Statement of Principles, Instrument No.5 of 1994 (Psychoactive Substance Abuse or Dependence)
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is a review of two decisions. The first is the decision of a delegate of the Repatriation Commission ("the Respondent") dated 12 October 1998 that rejected a claim made by Albert Charles Cant ("the Applicant") for ischaemic heart disease ("IHD"). The Veterans' Review Board ("the VRB") affirmed that decision on 2 July 1999. The second decision under review is that part of the decision of the VRB of 2 July 1999 that set aside a decision of the Respondent dated 1 December 1998 that continued payment of pension at 80 percent of the General Rate and in substitution determined that pension be paid at 90 percent of the General Rate from and including 8 October 1998.
The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant and his wife, Norma Cant, gave oral evidence at the hearing. The following documents were tendered as evidence on behalf of the Applicant –
Alcohol Questionnaire in respect of the Applicant, dated 24 November 1999 (exhibit A);
Unsigned statement of the Applicant dated 2 August 2000 (exhibit B);
Unsigned statement of Norma Cant dated 2 August 2000 (exhibit C);
Medical certificate of Dr S Ruba dated 17 November 1999 (exhibit D);
Report of Dr M G Miller, consultant physician, dated 28 March 2000 (exhibit E);
Letter from Applicant's advocate to Dr S Harvey dated 25 October 2000 and reply from Dr Harvey dated 7 November 2000 (exhibit F)
Copy of p38 of MIMS Issue No.2 of 1998 (exhibit G)
Report of Dr L Lambeth, psychiatrist, dated 27 September 2000 (exhibit H).
The following documents were tendered as evidence on behalf of the Respondent –
Report of Dr A J Hickey, cardiologist, dated 12 January 2000 (exhibit 1);
Report of Dr D A Floate, consultant neurologist, dated 3 April 2000 (exhibit 2);
Reports of Dr N Saltos, thoracic physician, dated 12 February 1986, 16 October 1987, 23 June 1988, 3 April 1990, 5 October 1990, 7 November 1992, and 3 March 1993 (exhibit 3);
Reports of Dr D L Brash, consultant psychiatrist, dated 3 July 1995 with clinical notes (exhibits 4 and 7);
Medical examination report of cardiovascular system by Dr S Harvey dated 26 November 1991 (exhibit 5);
Medical report- hypertension, by Dr S Harvey dated 30 December 1999 (exhibit 6);
Departmental list of enemy raids on Australia 1942-43 (exhibit 8);
Clinical notes of Dr Harvey (exhibit 9).
It was conceded for the Respondent that if the Applicant succeeds with his claim for IHD then he is entitled to payment of pension at the Extreme Disablement Adjustment ("EDA") rate with effect from 8 July 1998. This was acceptable to the Applicant.
legislation and applicable statements of principlesThe Applicant served in the Australian Army and had operational service during World War II from 29 October 1940 to November 1945. Therefore the standard of proof to be applied is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"). These sections require the Tribunal to determine that his claimed condition was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that his condition was war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting that condition with the circumstances of his service.
The Applicant has post traumatic stress disorder ("PTSD"), amongst other conditions, accepted as war-caused. The hypothesis being pursued by the Applicant in relation to his IHD claim is that because of his stressful war service that caused PTSD, he abused alcohol throughout his life until after his heart attack in 1998, that in turn his heavy consumption of alcohol contributed to the development of hypertension for which he has been treated since 1975, and that his hypertension contributed to the later development of IHD.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is also required to apply the relevant Statements of Principles in determining this matter. The Applicant sought to rely on his accrued rights to have this matter determined using the Statements of Principles in place at the time the primary decision was made. Accordingly , the relevant Statements of Principles in relation to the hypothesis are –
Instrument No.140 of 1996 for Ischaemic Heart Disease, as amended by Instrument No.77 of 1997 and No.37 of 1998;
Instrument No.64 of 1998 for Hypertension;
Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence.
The Applicant relies on factor 5(a) in Instrument No. 140 of 1996 for Ischaemic Heart Disease, viz-
the presence of hypertension before the clinical onset of ischaemic heart disease;.
The Applicant relies on factor 5(b) in respect of Instrument No 64 of 1998 for Hypertension, viz-
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;
With respect to Instrument No. 5 of 1994 for Psychoactive Substance Abuse or Dependence, factors 1(a) and (b) are relied upon, viz-
(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b) having a psychiatric condition prior to the clinical onset of psychoactive abuse or dependence;
On the basis of the evidence before the Tribunal it was conceded for the Respondent that the only link in the chain of causation that is in dispute is whether the Applicant suffered from alcohol abuse. The Tribunal finds that this concession was properly made.
evidence
ApplicantThe Applicant was a machine gunner during his posting in Darwin in 1941. About a year before the bombing raids in Darwin commenced, the Applicant said he started drinking alcohol because "boredom set in". He said he and about five others regularly drank a crate of beer containing a dozen 26 oz bottles.
The Tribunal notes an Alcohol Questionnaire completed by the Applicant on 24 November 1999 (exhibit A), that stated he commenced drinking during service in Darwin in 1941 because it helped to calm his nerves and it also helped with boredom at times, and that he drank about 4 to 5 "long neck bottles of beer" every day (except when on guard duty). The Applicant admitted in cross-examination that alcohol was rationed in Darwin just after the first raid and that he might have consumed less than the quantity stated.
The Applicant said the first bombing raid on Darwin was a stressful experience for him. He said –
The day of the first raid, there was, I think, 188 planes came over in one lot and they bombed right down the side of where we were on to the harbour, sank all those ships as you have all read about, and they bombed the aerodrome and these planes were only just at tree top height. Eventually when they first came in they were high, certainly the bombers, the fighters were rushing around at tree top height. That was very stressful because I didn't know what was going to happen.
After the first raid the Applicant said he recalled retrieving bodies from the water that had been killed on the ships. He said that was stressful, and his time in Darwin was generally "pretty stressful". They had to be prepared for further bombing raids subsequent to the first raid in 1942 which he said was also "very stressful just waiting to see what would happen". He said there were raids almost every night for the first few weeks that he was in Darwin, and that he worked during each of the 48 air raids that occurred.
The Applicant then went to Papua New Guinea for three to four months. He did not drink as much there as he had previously because it was scarce, except for jungle juice. The Applicant went to the Ramu Valley in New Britain about mid 1943. His duties there were to patrol the area in search of Japanese engaged in jungle warfare. He said they found only one group. He said patrolling was "very worrying" and that he was "on edge all the while".
The Applicant recalled that 25 of their comrades had been killed in New Britain. Although he did not witness those deaths, nonetheless this was a very traumatic experience. He said –
Some of those fellows we trained with for 3 years…you become just like a big family and to lose them.. well it could be anybody…the Japanese had a fairly big mortar…they dropped down a tube and it goes over and generally hit the tree tops and explodes there and that is where a lot of people are killed
The Applicant said that he had witnessed the death of several other close friends during other times on service.
The Applicant married in 1945. After discharge from the Army he worked as a fireman at the glass works whilst he lived in Darlinghurst. He moved to the Newcastle area in 1946 and worked as a railway shunter in the steel works railway system and eventually transferred to the position of traffic controller and then senior controller.
The Applicant said immediately after discharge he drank about a middy a day because he did not have much money. That evidence is consistent with his alcohol questionnaire (exhibit A). He said that as the finances improved his drinking also "improved". After moving to Newcastle he recalled that he drank 4 or 5 middies of beer with some of his work colleagues for about 2 to 2½ hours at a club after every work shift. He said as senior controller he did not drink on the job, except for a couple of beers "on some very rare occasions".
The Tribunal notes from the alcohol questionnaire (exhibit A) that in 1950 he drank 2 to 3 middies a day, and between 1960 to1998 he drank 3 to 6 middies "+ binge drinking". In his oral evidence he explained the reason for his binge drinking was -
..you had to have a shout if you went with a party, and there were six or eight or 10 in it, everybody had to shout, otherwise you were miserable
The Applicant said that he and his wife frequently fought about his drinking problem. His alcohol consumption was facilitated by the fact that his wife was at work when he finished his day shifts. He said if he stayed at home he would experience flashbacks of his war experiences. Going to the club and drinking with his friends took his mind off that. The Applicant also said that he drank after work to relax as his job required heavy concentration. The Applicant said he drove while intoxicated at least three or four times a week at that time. He said he would drive home without concern about how much he had drunk, but then "I've had to go and have a look at the car the next morning or later on in the night when I become more sensible to see if it was all right".
The Applicant said he was first treated with medication for hypertension by Dr Ruba, his local medical officer, about 1975. He said Dr Ruba also monitored his blood pressure during that time. After Dr Ruba closed his practice the Applicant started seeing Dr Hardy, GP, in about 1981. He could not recall whether Dr Hardy ceased prescribing medication, nor could he recall whether he continued to take medication for hypertension after that time. Currently he takes medication for hypertension and IHD. The Applicant said that Dr Ruba was probably not aware that he was drinking at the time, nor was Dr Harvey aware. He recalled that another doctor, prior to Dr Ruba, advised him to reduce his alcohol consumption, but he said he continued to drink nonetheless because of stress.
The Applicant retired in February 1981. The Tribunal notes in his alcohol questionnaire (exhibit A) the Applicant stated since 1998 his drinking decreased to one middy a week and 3 to 4 glasses of wine per week following medical advice after his heart attack. In oral evidence, the Applicant said he first experienced angina in 1997 and in July 1998 he suffered a severe heart attack.
The Applicant admitted that his heart attack significantly changed his lifestyle habits. He alcohol consumption is reduced and his ability to walk is restricted because of shortness of breath. He said his asthma is controlled by medication. He can no longer do anything around the house. He stopped driving in about March 2000, and now rarely has any social activities.
The Applicant consulted Dr Brash, psychiatrist, on 17 May 1995, at the request of the Respondent regarding his claim for PTSD. The Applicant was adamant that he did not discuss his drinking with Dr Brash, and could not explain why Dr Brash had stated in his report "he is a man who has not resorted to alcohol or sleeping tablets to try to deal with his problem" (exhibit 4). Nor, he said, did he discuss the issue when he saw Dr Murray at the end of 1997, for which, he said, no report was made. The Tribunal notes that indeed Dr Murray did provide a report to Dr Harvey dated 21 January 1998 (p71 of Dr Harvey's clinical notes – exhibit 9) in which Dr Murray noted "substance abuse is limited to 10 gm of alcohol a week". The Tribunal notes by reference to Instrument No.64 of 1998, that this equates with two standard drinks of alcohol per week.
The Applicant said that the first doctor who asked him specifically about his drinking habits was Dr Hickey, in Newcastle. Dr Hickey, cardiologist, provided a report dated 12 January 2000 for the purpose of these proceedings (exhibit 1). Dr Hickey obtained a history consistent with that recorded by Dr Miller and Dr Lambeth. Dr Hickey calculated that the Applicant consumed approximately 720 grams of alcohol per week between 1941 and 1943.
The Applicant recalled seeing Dr Floate, neurologist, for "memory loss". Dr Floate reported on 3 April 2000 (exhibit 2) that the Applicant said he had suffered memory loss for the last ten years, which worsened since his heart attack in July 1998. His report was provided for the purposes of a claim regarding memory loss. Dr Floate said –
He told me that during his service years he was drinking heavily in 1941/1942. His recollection was that he would drink almost to the point of being drunk on a daily basis. Since the war years he has not been a heavy alcohol user and would now drink about 3 to 5 standard measures of alcohol per week.
Norma Cant
Mrs Cant first met the Applicant in about 1939 before he joined the Army. However they did not start dating until he returned from Darwin in about 1941. They married in 1945. They have 2 children aged 54 and 46 years respectively.
Prior to service, she recalled that the Applicant drank a little, and that after his discharge and throughout their marriage he drank "too much". She said his drinking had adverse effects on their marriage, viz –
I stuck it out and then Robert was born.. and money was very scarce but Bert always seemed to have money to drink…So I just stuck it out. Then when the children got to high school age I got a job and he just went on drinking. It seemed to me as if he couldn't stop. There were many, many arguments and fights. I wouldn't talk to him for days on end. He did work 7 day shift work but when he finished on afternoon shift he'd go drinking with his mates. When he was on day work he'd go drinking with his mates. I wasn't home then when I started to work so I presume he drank just the same then. It wasn't a very happy marriage but I had nowhere to go and I had 2 children and I didn't have anybody to turn to and I was too proud.
Mrs Cant recalled that in about 1951 the Applicant came home drunk repeatedly two or three times a week. She said that he was not violent or quarrelsome when he was drunk but rather he would get sleepy. After the Applicant retired she recalled that his drinking pattern remained the same. She said he played bowls three times a week and at times he came home "pretty well under the weather".
Mrs Cant said that throughout their marriage Applicant always had disturbed sleep, when he would be "muttering and tossing and turning" every night, whether or not he had been drinking.
Mrs Cant said the Applicant never discussed the war with her, and she only found out about his stressful experiences when she was with him when he disclosed to Dr Murray that he had flashbacks.
Mrs Cant said that the Applicant rarely drank since his heart attack. Since then he has become totally dependent upon her. She helps him shower, she dresses him and prepares all his meals. During the day she said he eats, reads the paper and does the crossword, although she thinks he "just sits and stares into space" instead of reading the paper. He sleeps for a couple of hours during the day and is asleep again by about 7.30 pm because he feels exhausted.
other evidenceIncluded in the clinical notes from Dr Harvey is a report from Dr Porter, gastroenterologist, dated 17 September 1991 (exhibit 9, p131), to Dr Harvey, in which he noted that the Applicant "tends to drink only 1 beer per week".
The Tribunal notes from a careful examination of Dr Harvey's clinical notes (exhibit 9) that there is no reference to the Applicant's alcohol intake throughout the notes that date from 1991 to 1999.
A history of the Applicant's drinking was taken by Dr Miller, consultant physician, noted in his medico-legal report of 28 March 2000 (exhibit E) for the purpose of these proceedings. Dr Miller noted –
He started drinking in 1941 but increased after his Darwin experiences. He then drank at least 300 grams of alcohol daily in the form of four to five 26 ounce bottles of beer a day. He cut down his alcohol between 1945 to 1950, but, in 1950, he began to increase his intake again. In 1960 he was drinking very much more, he told me "I used to get stuck into it" and admits to at least four to six middies a day and would undertake alcohol binges at least twice a week. This led to friction with his wife, she did not like his drinking and told him so, and told me that "many were the rows".
Mr Cant also admitted to driving after he had drunk too much, he then said that on the morning after a binge he would go and look at the car in order to check that there was no damage to it.
He continued this drinking habit until 1998 when he reduced his alcohol considerably because of his severe heart condition. Currently he has one to two glasses of wine and about one middy a week.
Dr Miller's report was silent about the association between the Applicant's drinking and his PTSD or his war service. He assessed the PTSD using GARP-V at 36 impairment points.
The Applicant was examined by Dr Lambeth, psychiatrist, at the request of the Applicant's representative for the purpose of these proceedings. In his report dated 27 September 2000 (exhibit H) he noted, inter alia –
The marriage has been a difficult one, according to his wife, mainly because of his drinking during the 1950's, 60's, 70's and 80's.
Dr Lambeth diagnosed chronic PTSD of moderate intensity, and alcohol abuse. He considered that the alcohol abuse was secondary to PTSD and was a form of self-medication and avoidance behaviour. Dr Lambeth also said –
Unfortunately, part of his coping mechanism was the use of alcohol. He told me he did not drink prior to joining the Army and began to drink in the Army, due to social pressure, the availability of alcohol, and also drinking to avoid the feelings of stress of his war service. He was drinking approximately 300 grams a day while in Darwin.
On leaving the Army he did not drink as much for the first four years, that is from about 1945 to 1950, due to the lack of finances. After that period of time, however, he began to drink more. The drinking was increased due to an increase in the memories of Darwin, in particular of the air raids and the bodies. He told me that drinking with friends would help relieve the tension. He was drinking approximately sixty grams of alcohol per day and would binge twice a week.
This caused many arguments at home and his wife said that she frequently wanted to leave him but she had children and could not do so.
He also placed himself in dangerous situations in that he was using alcohol when driving. In such a situation it was physically hazardous, and when he woke up in the mornings, he would often check to see that the car was okay and that he had not had an accident.
Now, I note that he drinks approximately 60-80 grams of alcohol per week and this has been from about 1988.
The Applicant was examined by Dr Brash, psychiatrist, in relation to his claim for PTSD. In his report dated 3 July 1995 (exhibit 4), Dr Brash gave a detailed description of the symptoms experienced by the Applicant in respect of his PTSD. At the end of a description of symptoms relating to flashbacks in the daytime, sleeplessness at night and feeling sleepy during the day, Dr Brash stated –
Fortunately, he is a man who has not resorted to alcohol or sleeping tablets to try and deal with this problem.
Dr Brash concluded that the Applicant's PTSD symptoms were "relatively mild". He said –
The fact that these areas are not greatly impaired is reflective of his quite stable personality and avoidance of self-injurious behaviours such as heavy drinking.
Dr Harvey, the Applicant's local medical officer, notwithstanding the lack of reference in any of his clinical notes to the Applicant's alcohol intake, completed a pro-forma medical report for Hypertension dated 30 December 1999 (exhibit 6). Dr Harvey noted the existence of alcohol dependence or alcohol abuse from 1941 until approximately 1990. He stated –
Began steady heavy drinking >50-60gm/day during service years 1942;
Continued to be regular drinker >60 gm daily until the early 90s
submissions
It was conceded for the Respondent that the Applicant has suffered from hypertension for which he has received treatment since 1975.
The Respondent is concerned in this matter about the two competing alcohol histories. One was given to Dr Brash (exhibit 4) and referred to in his clinical notes "no alcohol, no sleeping tabs.". The clinical notes obviously are the basis for his report, and the report was the basis on which PTSD was diagnosed and accepted by the Respondent. The second example of this history is in Dr Floate's report (exhibit 2) "since the war years he has not been a heavy alcohol user and would now drink about 3 to 5 standard measures of alcohol per week". This report relates to a claim in respect of the Applicant's failing memory. It was submitted that Dr Floate is a well practiced neurologist who is likely to have been told this by the Applicant. It was submitted that, where the history does not relate specifically to the claim now before the Tribunal, the history seems to change. The history recorded by Dr Lambeth is directly at odds with Dr Brash.
It was submitted that the hypothesis of the heavy ingestion of alcohol must be an essential link in the chain of causation. The alcohol history noted by Dr Brash and Dr Murray were put to the Applicant in examination in chief. He denied any knowledge of discussions with these doctors about his drinking. The Respondent also noted an inconsistency in the medical reports produced in relation to life events. Dr Brash does not record the maladaptive history at all, but he did make a finding of very mild PTSD. It was submitted that the report from Dr Lambeth does not sit well with Dr Brash's report.
It was the Respondent's position that the apparent conflict in the reports and the histories supporting the reports has to be resolved before the issue of entitlement can be resolved. Once the Tribunal resolves the conflict in the reports about the alcohol abuse, the rest is not at issue for the Respondent.
The Respondent acknowledged that the Applicant is significantly affected by his psychiatric condition, and conceded that the assessment of 36 impairment points assessed by Dr Miller is consistent with "moderate severity" assessed by Dr Scott Murray.
consideration of evidence and findings of factOn the evidence, and noting the concessions made on behalf of the Respondent, the Tribunal finds that the Applicant's hypertension existed at least from 1975 when treatment for the condition commenced, and therefore hypertension was present before the clinical onset of the Applicant's IHD. The clinical onset of IHD can be dated at about 1997 when the Applicant first experienced angina. On the basis of the raised facts, the Applicant meets factor 5(a) of Instrument No.140 of 1996 for Ischaemic Heart Disease. It is not in dispute that the Applicant suffers from a war-caused PTSD.
The only hurdle for the Applicant is whether he meets factor 5(b) of Instrument No.64 of 1998 for Hypertension, that is, whether he was consuming an average of at least 200 grams per week of alcohol (20 standard drinks of alcohol) at the time of the accurate determination of his hypertension in 1975. There are conflicting alcohol histories before the Tribunal, viz.
Applicant's alcohol questionnaire dated 24 November 1999 (exhibit A) and his oral evidence = between 1960 and 1998 – 3 to 6 middies a day plus binge drinking. This is consistent with his wife's evidence, and is in excess of 200 grams per week.
Dr Miller's medico-legal report dated 28 March 2000 (exhibit E) = 1960 to 1998 - 4 to 6 middies a day plus binges at least twice a week. This is in excess of 200 grams per week.
Dr Lambeth's medico-legal report dated 27 September 2000 (exhibit H) = 1950s, 1960s, 1970s and 1980s – 60 grams per day plus binge drinking twice a week. This is in excess of 200 grams per week.
Dr Hickey's medico-legal report dated 12 January 2000 (exhibit 1) = history consistent with that given to Dr Miller and Dr Lambeth. This is in excess of 200 grams per week.
Dr Harvey, LMO, Hypertension medical report dated 30 December 1999 (exhibit 6) = more than 60 gm daily until the early 1990s. This is in excess of 200 grams per week.
The Tribunal notes that this is inconsistent with the Applicant's evidence to the Tribunal, and the histories he gave to Dr Miller and Dr Lambeth, who recorded that he maintained his heavy drinking pattern until 1998 when he had his heart attack. However, the report of Dr Harvey is not inconsistent with his clinical notes dating from about 1991, where no reference is made to the Applicant having a drinking problem.
Dr Brash, report of 3 July 1995 (exhibit 4) in relation to PTSD claim = Applicant has not resorted to alcohol to deal with his "relatively mild" PTSD. Less than 200 grams per week.
Dr Porter, treatment report dated 17 September 1991 (exhibit 9, p131) = 1 beer per week. Less than 200 grams per week.
Dr Floate's report dated 3 April 2000 (exhibit 2), in respect of a claim for a different condition = Drank alcohol in 1941 and 1942 to be almost drunk on a daily basis, but since the war years he has not been a heavy alcohol user - 3 to 5 standard drinks per week. Less than 200 grams per week.
Dr Murray, treatment report 21 January 1998 (exhibit 9, p71) – before heart attack = 10 grams alcohol a week. Less than 200 grams per week.
It is clear, on some of this evidence, the fact has been raised that the Applicant was drinking in excess of 200 grams a week in 1975 at the time treatment commenced for his hypertension. On this basis, bearing in mind that in considering whether a reasonable hypothesis has been raised pursuant to s120(3) of the Act the truth of the facts raised are not at issue, the Tribunal determines that factor 5(a) of Instrument No.64 of 1998 for Hypertension and factor (a) and/or (b) of Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence have been met, and therefore a reasonable hypothesis has been raised.
Turning now to s120(1) of the Act, the issue is whether the reasonable hypothesis has been disproved beyond reasonable doubt. At this point the Tribunal is required to make findings of fact and the standard of proof to be applied is the reverse criminal standard. The issue in effect is whether, because of the conflicting evidence regarding the Applicant's drinking history, the Tribunal is satisfied beyond reasonable doubt that in 1975, when treatment commenced for his hypertension, he was not drinking at least to the extent of 200 grams of alcohol a week.
The Applicant's credibility is certainly called into question on this issue. The contrast is quite stark between the documents that have been generated for the purpose of this claim and those that have come into existence for some other reason. The Tribunal notes the consistency between the Applicant's evidence and that of his wife, and the consistency in the history he has given to Dr Miller, Dr Lambeth and Dr Hickey. Having noted that the Applicant has complained about a poor memory over the last ten years, the Tribunal would expect his various accounts to different people to have some significant discrepancies if it was manufactured merely for the purpose of these proceedings.
On the other hand, if the Applicant had a significant drinking problem, it would not be unusual for him to deny or minimise his drinking, particularly if disclosure might cause him to be pressed to change his drinking habit, for example, when he was examined by Dr Floate, Dr Murray, Dr Porter and Dr Brash. Although the absence of any reference in Dr Harvey's clinical notes to the Applicant's drinking problem does not sit comfortably with his medical report dated 30 December 1999 (exhibit 6) that was probably generated in relation to these proceedings, that could be reconciled if in fact it is true that the Applicant's problematic drinking continued only until the early 1990s, which coincided with Dr Harvey taking over as the Applicant's local medical officer. On the other hand, it could represent an erroneous history provided to Dr Harvey by the Applicant in 1999, so that Dr Harvey was not aware of the Applicant's alcohol abuse right up to the time of his heart attack and during the period of his ill health for other reasons for which Dr Harvey provided treatment. All this points to the fact that although the Tribunal has some real doubt about the truth of the raised facts, that doubt is not of sufficient strength to meet the very stringent test of being satisfied beyond reasonable doubt.
Therefore, the Tribunal determines that pursuant to s120(1) it is not satisfied beyond reasonable doubt that the Applicant's IHD is not war-caused. The decision under review is therefore set aside and in substitution the Tribunal determines that the Applicant's IHD is war-caused, with effect on and from 8 July 1998.
Noting, with approval, the Respondent's concession in respect of assessment, with which the Applicant agreed, the Tribunal determines that the Applicant be paid pension at the EDA Rate with effect on and from 8 July 1998.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 3 August 2000
Date of Decision 5 June 2001
Solicitor for the Applicant Ms J Buchanan, Legal Aid Commission
Solicitor for the Respondent Mr R Wallis, Dept. of Veterans' Affairs
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