Carmody and Repatriation Commission - [2000] AATA 595

DECISION AND REASONS FOR DECISION [2000] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/269

VETERANS'     APPEALS     DIVISION     )
           Re      FRANCIS EDWARD CARMODY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss E. A. Shanahan, Member

Date21 July 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review. The applicant's hypertension was not war-caused within the meaning of that term in section 8 of the Veterans' Entitlements Act 1986.

.........(Sgd) E. A. Shanahan.........
Member
CATCHWORDS
VETERANS' AFFAIRS – whether the development of hypertension was war-caused within the meaning of section 8 of the Act – whether material raises a reasonable hypothesis connecting hypertension with the daily consumption of alcohol before and continuing at least until the accurate determination of hypertension – application of Statements of Principle No. 83 of 1995 and No. 5 of 1994
Veterans' Entitlements Act 1986 ss. 120(1), 120(3), 120A
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 116 ALR 210
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Keeley v Repatriation Commission (1999) 56 ALD 455; [1999] FCA 1103
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Keeley [2000] FCA 532

REASONS FOR DECISION

21 July 2000 Miss E. A. Shanahan, Member

This is an application for review of a decision of a delegate of the Repatriation Commission, dated 22 October 1997, which found that the claim for hypertension could not be connected to service as the relevant Statement of Principles ("SoP") was not satisfied. This decision was confirmed by the Veterans' Review Board ("the VRB") on 4 January 1999.
The applicant was represented by Mr D. De Marchi and Mr K. Herman, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and received several exhibits from both parties. The applicant tendered a report from Mr T. Watson-Munro, psychologist, dated 8 November 1999 (Exhibit A1); an alcohol statement dated 30 June 1999 prepared by the applicant (Exhibit A2) and a lifestyle questionnaire also completed by the applicant (Exhibit A3). The respondent tendered the section 37 documents (Exhibit R1), a Departmental medical examination dated 16 September 1957 (Exhibit R2), the Transcript of the VRB hearing of 4 January 1999 (Exhibit R3), the clinical notes of Dr L. Cukierman, the applicant's general practitioner (Exhibit R4) and a medical impairment assessment dated 21 June 1999 (Exhibit R5). The veteran gave evidence before the Tribunal and evidence for the applicant was also given by Mr Watson-Munro. Dr K. Byrne gave evidence for the respondent.
Background to the application
The veteran was born on 9 March 1925 and served in the Royal Australian Army from 5 April 1943 until 18 June 1947. As he served in the South West Pacific Area, the whole of his service constitutes operational service. The latter attracts a standard of proof as provided in subsections 120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal is required to find that the claimed hypertension was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The veteran lodged his claim with the Repatriation Commission on 1 September 1997 and therefore section 120A of the Act, effective 1 June 1994, applies to this application and any decision. It was contended before the VRB on 4 January 1999 that the veteran's hypertension was caused by the ingestion of salt tablets whilst he was serving in North Queensland and the South West Pacific. It had been claimed that post-service he continued to ingest 12 grams of salt a day in the form of salt added to the cooking of his meals and the addition of table salt at meal times. The VRB determined that the veteran had a high salt intake with meals prior to his enlistment in 1943 and that this pattern had continued after discharge. On this basis he did not meet the requirements of SoP Instrument No. 83 of 1995, factor 1(c). This contention was not argued before the Administrative Appeals Tribunal hearing on 28 April 2000. The veteran then contended that his hypertension had resulted from psychoactive substance abuse involving a daily consumption of alcohol before and continuing at least until the accurate determination of hypertension. The SoP Instrument No. 5 of 1994 is also attracted and in particular the requirement that a stressful event is suffered by the veteran prior to the clinical onset of psychoactive substance abuse.
Evidence before the Tribunal
The veteran gave evidence that he had his first drink of alcohol at the age of 17 and a half years. During his training periods at Puckapunyal and in Dubbo he would drink whilst on leave. An army canteen was not available during this period and his drinking was confined to weekend leave. Any drinking that he was involved in was in hotels and as they closed at 6.00 p.m. and beer was rationed, his intake was limited. During his overseas service access to alcohol was limited but bottles of beer were made available at Christmas time. During his return from Rabaul to Sydney, beer was issued on board the ship and as he, unlike his colleagues, did not suffer from seasickness, he frequently drank their rations. However, he did not commence drinking regularly until his return to Australia in 1946. Upon his return to Australia he was posted to an Army Education Store in St Kilda for approximately 16 months before he was discharged from the Army in June 1947. Upon assuming this position in the Education Store the veteran had been promoted to the rank of Sergeant but found his duties in the Education Store boring and unsatisfying (Transcript page 13). He admitted he did not cope with this period of service as he felt he should have been discharged from the Army at the end of hostilities. It was at this time, in 1946, that he commenced drinking regularly after work and also on occasions at lunchtime. The veteran related that he might have up to five pots of beer at lunchtime and would return to the hotel between 4.00 or 5.00 pm and drink until closing time at 6.00 pm. At weekends he would drink at home and in the local hotel.
Following discharge from the Army, the veteran commenced work as a process worker for a few months and then gained a job with CIG in a trainee position. His pattern of drinking continued until he married in 1948. He did not drink during working hours and his drinking was confined to weekends and trips away from home. He stated that he did not drink every evening in that period (Transcript page 16, line 10). In general he did not think he was drinking as much between 1947 and 1948 as he had been whilst still in the Army from 1946 to 1947.
Following his marriage he became a leading hand with TAA and commenced a training course funded by the Government. His drinking was then confined to weekends as he was attending school one afternoon and four nights a week as well as working full-time. In answer to a question from Mr De Marchi, he agreed that at weekends he would attend parties and social occasions where he would have indulged in binge drinking. The veteran indicated that he subsequently undertook several courses of training and education involving a total of more than eight years. Having attained a senior position in TAA he was required in 1959 and thereafter to travel overseas on behalf of TAA to conduct business with various overseas companies. Whilst overseas he was entertained by these companies and this would involve a higher level of alcohol intake. He would be alone in hotels during the weekend and would drink in the evening after work. This was the pattern for a period of three months in 1959. There was a similar episode in 1963 when he was required to go overseas on TAA's behalf for a further period of three months. In 1966 the veteran was promoted from foreman to supervisor resulting in a higher disposable income and this was coupled with lesser responsibilities in regard to his children's education. He felt that he had more money to spare. At this time his pattern of drinking changed and he would go to the local hotel on his way home from work and have "a few beers with the people that I worked with" (Transcript page 18, line 15). He did not drink at work nor during the day but would have four to five beers on his way home from work and another bottle of beer before his dinner. A further overseas assignment in 1967 followed the pattern of 1963 characterised by lots of travel, staying in small towns and a fair bit of drinking (Transcript page 18, line 28). In approximately 1967 on his way home from a football match and after attendance at a hotel where he had had several drinks, he was breathalysed and found to be over .05. He was not certain about the actual reading, but thought it was in the vicinity of 0.23. He was charged with drink driving but the charge was dismissed. Following this episode the veteran's wife drove whenever they went to social outings or parties. The veteran did not drive again if he had been drinking socially.
The veteran was diagnosed with hypertension in 1970 but was unaware of the diagnosis until he underwent a full health check at the Sheppard Foundation in the 1970's at the request of TAA.
The veteran agreed on direct questioning by Mr De Marchi that he had suffered from anxiety and depression and that he had an accepted anxiety condition. The veteran stated he had always been an anxious fellow even whilst at school. The veteran did not find that drinking relieved his anxiety except in a very temporary setting. He was never advised by his treating medical practitioners to cease drinking. While it is not absolutely clear, it would appear that the veteran commenced anti-hypertensive therapy in about 1970 and was prescribed Aldomet by his general practitioner, Dr Lampard. Following his review at the Sheppard Foundation, the dose of Aldomet was increased and Moduretic was added.
The veteran's wife was unhappy with his drinking pattern and he attributed this to the fact that her father had had a drinking problem. She had complained about his drinking and sought to decrease the amount as had his uncle and aunt in 1947.
In cross-examination by Mr Herman, the veteran stated that he felt indignant, frustrated and angry that he was required to stay in the Armed Forces until June of 1947. He resented being conscripted into the Forces and not being allowed to resume civilian life at the end of the war. The veteran agreed with Mr Herman's suggestion that while in the South West Pacific he had become a heavy smoker and that he did so because tobacco was readily available. The veteran said that he had blocked out any episodes of danger he had experienced during his operational service and that his major response had been indignation and frustration. He confirmed that his wife's father had been an alcoholic in his earlier years. The veteran also agreed that his relationship with his children and grandchildren was close and harmonious although, on today's standards, he felt he had not spent as much time with his children as was advisable. He had been a regular churchgoer and had taken up golf since he retired. The veteran agreed with Mr Herman that in his interview with Dr Freed in September 1997, he had said that he did think his drinking was a problem and that he could always control what he drank. The veteran advised he had not previously referred to his drinking history as he had been advised by an RSL legatee that his major problem was related to his salt intake.
While the replies to questions are unclear, it appears that the veteran did not agree with Mr Watson-Munro's estimate that in his early days he was consuming 20 glasses of beer a day. He did agree that from 1948 onwards, his alcohol intake diminished. Mr Watson-Munro's comment regarding family related stresses, it would appear only applied to the past ten years. The veteran did not consider himself an alcoholic within his own definition of that term (Transcript page 34, line 33). The veteran agreed that he never drank at work and that whilst his overseas trips were work situations, they were in a totally different environment. He was always conscious of the safety requirements of his position at TAA and aircraft safety. He insisted that at no time had his drinking interfered with his ability to work.
The veteran agreed with Mr Herman that on his overseas trips representing TAA, the social drinking that was involved was the norm at that time. The veteran attributed his drinking on these trips to be related predominantly to the fact that he was alone, bored and frustrated. It was not related to his employer TAA. The veteran's decision not to take a more senior position at TAA and to accept a package and retire at the age of 58 was his decision and his alone as he felt he was a bit beyond new challenges at that time. Since his retirement he has continued to drink beer to which he believes he is addicted but that the amount is variable. He limits his drinking when he is out with his wife but would drink more in the middle of the day if it was hot and he was involved in working hard (Transcript page 38, line 26). He admitted to driving with what he called a bad hangover but had relied on his wife driving after social events. The times when he had driven with a hangover were mainly related to special occasions when they visited the country and were certainly not a daily event. In re-examination by Mr De Marchi, the veteran expressed the opinion that while he wanted to drink each day, he considered his level of drinking to be safe and not excessive. Despite that he felt alcohol had been a personal problem for him. The veteran felt he could not give up alcohol altogether as it would have a deleterious effect on his health. He stated that he would be nervous in the extreme without the pacifying effect of alcohol (Transcript page 44, line 5-8).
In support of the veteran, oral evidence was received from Mr Watson-Munro, psychologist. Mr Watson-Munro stated that he had taken over the veteran's file upon the death of Dr Sime who had seen the veteran in relation to this application. He had noted Dr Sime's history and examination of the veteran and had himself interviewed the veteran on 29 October 1999 issuing a report dated 8 November 1999 (Exhibit A1). Mr Watson-Munro confirmed his written report and in oral evidence stated that the veteran had given a history of consuming in excess of 200 grams of alcohol a day at his peak and that this represented 12 pots of regular beer during the working week and more than that on Saturdays. In recent times his level of consumption has diminished to three to four cans of beer per night. He agreed that the veteran had commenced drinking because of indignation and frustration at having to remain in the service beyond 1945. Mr Watson-Munro denied he had obtained a history of increased drinking in 1966 when the veteran was required to travel overseas on behalf of TAA nor had he obtained a history of a traffic charge in the 1960s on a 0.05 charge. Mr Watson-Munro was of the opinion that the veteran had played down the impact of his drinking on his life. He had not mentioned the fact that his wife's father had been an alcoholic. He agreed there was a history of anxiety and depression and that this was often associated with increased alcohol intake. Mr Watson-Munro was of the opinion that the veteran met the SoP relating to the definition of psychoactive substance abuse or dependence.
In cross-examination by Mr Herman, Mr Watson-Munro agreed that the history from 1948 to 1960 of drinking one bottle of beer on Friday nights would mitigate against an alcohol dependence, however, he stated this was different to the history he had obtained. Mr Watson-Munro noted that the veteran's drinking habits did not impact upon his work nor greatly upon his family situation other than his wife's desire for him to reduce his alcohol intake. Overall Mr Watson-Munro was of the opinion that the veteran suffered from a post traumatic stress disorder leading to self-medication with alcohol. In answer to questions from the Tribunal, Mr Watson-Munro stated he had not obtained a history from the veteran that he had always been an anxious individual even as a child and teenager. In addition, he was unable to provide an incidence of cognitive problems and damage relating to alcohol ingestion over a period of 20 years or more. He had referred to this in the bulk of his evidence.
Dr Kenneth Byrne, psychologist, gave evidence on behalf of the respondent. Unfortunately Dr Byrne was involved in a minor vehicle accident and although suffering no physical injury, his appearance at the Tribunal was delayed for a considerable time. Dr Byrne had prepared a report detailing the veteran's history and Dr Byrne's opinion, dated 25 August 1999. He had obtained a history that the veteran was diagnosed with hypertension and some anxiety problems in about 1970. Treatment for blood pressure commenced at that time. In 1996 the veteran underwent a quadruple bypass operation for coronary artery disease and continues to take medications for his blood pressure. With respect to alcohol intake, Dr Byrne obtained the history that the veteran first drank alcohol at the age of 17 and between this time and his conscription to the Army, had occasionally drunk beer. During service training the veteran would attend local hotels when on weekend leave. During his service in Bougainville there was no alcohol intake whatsoever. In Rabaul, alcohol was only available on a couple of occasions. On his return to Australia via ship, the veteran recalled that they had been issued a bottle of beer every night of the 12 night journey. The veteran would often have more than a single bottle as many of the other soldiers were seasick. It was not until the veteran commenced working in the Education Store in St Kilda in 1946 that he commenced drinking regularly. As the Education Store was located next door to a hotel, he and other soldiers stationed at the Store would drink at the hotel every lunchtime and again after work. The veteran had estimated that he would drink 6 to 8 pots of beer at lunchtime and would drink for an hour after work. The veteran believed this drinking at this time was due to frustration with Army life and his work at the Store. He would also attend the hotel on Saturdays in the company of his mates. This pattern of drinking continued until his marriage at the end of 1948. Over the next 17 to 18 years, the veteran restricted his drinking to one bottle of beer on a Friday night. This restriction was explained by his increasingly responsible work with TAA, his undertaking of further education most of which was at night school, repair work he was doing on his own home and the responsibilities he had with several young children. This pattern of drinking continued until 1965 or 1966 when he began drinking more regularly, having three pots of beer at the pub after work followed by another bottle of beer at home during the week. On Saturdays he would spend one and half hours at the local hotel. The veteran had explained this increased drinking was due to having reached a more senior position, more money was available to him and he no longer had to spend such long hours studying. In addition, his children were older and of a lesser responsibility.
During overseas assignments on behalf of TAA in 1959, 1963 and 1967 he had taken more alcohol which he described as a lot of social drinking. Following his retirement in 1983, the veteran told Dr Byrne that he continued to drink seven days a week, starting late in the afternoon and prior to his evening meal when he would take two to three cans of beer. Whilst he did not admit to being drunk on many occasions, he had experienced frequent hangovers and had suffered memory loss after a drinking bout. He estimated these latter bouts occurred once per month. The veteran reported that he had never missed work as a result of a hangover or for any other alcohol related reason. He admitted his wife had been opposed to his drinking and that he had once been charged with drink driving due to an alcohol level greater than .05 but was not convicted on this charge.

On the basis of the history obtained, Dr Byrne was of the opinion the veteran did not suffer from alcohol abuse or alcohol dependence disorder. This was because, in his opinion, the veteran did not suffer from any significant alcohol related problems, even though he may well have ingested 200 grams of alcohol per week around the time of diagnosis of his hypertension.
In oral evidence before the Tribunal Dr Byrne enlarged on his written report. He was of the opinion that the veteran had never abused alcohol, in that he was able to control his drinking until work was over. He did not have the cluster of symptoms normally associated with excessive alcohol intake, for example, difficulties with their marital partner, difficulties in their driving records (except for one instance), loss of friends, impaired relationships with their children and an inability to meet their work requirements. The veteran, he felt, was a man who drank when he was young and single and in a boring Army situation - "…he then gets married and he grows up" (Transcript page 63, line 13). The veteran, he noted, had controlled his drinking for many, many years. Following retirement, the veteran had increased his drinking to two to three cans of beer per day which Dr Byrne regarded as moderate alcohol use.
In cross-examination by Mr De Marchi, Dr Byrne agreed that the veteran had been initially interviewed by his assistant, Mrs Aitken. When the veteran had attended to see Dr Byrne, Dr Byrne had not been available. Dr Byrne had obtained all his history in a 50 minute telephone consultation with the veteran. Dr Byrne's report did not mention any relationship between stress of war service and his drinking but Dr Byrne was of the opinion that he would have asked such a question and that the veteran did not offer any relationship between his drinking at that time (1946) and his war service. Dr Byrne disagreed with Mr De Marchi that the veteran was abusing alcohol on his return to Australia in 1946 and in the subsequent period when he was employed at the Education Store. With respect to the drinking habits of the veteran in the mid-1960s, which the veteran had reported as three pots of beer at the pub after work followed by a bottle of beer at home, Dr Byrne did not regard that as excessively heavy drinking at that time. Dr Byrne agreed that a person suffering from an anxiety disorder may turn to alcohol to assist in reducing the level of anxiety. Mr De Marchi asked Dr Byrne if the veteran had described regular flashbacks of his war service when he was a flame thrower operator in the South Pacific. The veteran had outlined those things that made him worry. These related mainly to work matters but he also admitted he had more frequent memories of Army service since he had joined the RSL. Dr Byrne was of the opinion that memories were quite different from flashbacks and there had been nothing in the history he had obtained from the veteran to suggest he suffered from flashbacks. Dr Byrne was cross-examined on the definition of psychoactive substance abuse or dependence contained in SoP Instrument No. 83 of 1995. Dr Byrne agreed that the veteran met those definitions during certain periods of his drinking life (Transcript page 76, line 27) but that his drinking pattern in 1948 and in the mid-1960s would not meet those definitions. He did not believe the veteran had ever suffered from psychological symptoms secondary to his drinking. In particular there was no indication that the veteran had ever suffered from depression although he did have an anxiety related disorder. He disagreed with Mr Watson-Munro's opinion that the veteran was clinically depressed and also disagreed that depression was a feature of any post traumatic stress disorder. He was of the belief that post traumatic stress disorder is by its very nature an anxiety disorder.
Dr Byrne was referred to SoP Instrument No. 83 of 1995 regarding psychoactive substance abuse. Paragraph 1(b) states:
"suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;"

Mr De Marchi contended that the veteran was consuming alcohol on a daily basis from approximately 1965. Dr Byrne disagreed as the veteran had stated that he drank six days per week.

In re-examination by Mr Herman, Dr Byrne did not believe that the veteran's increased drinking from 1965 onwards was a resurgence of the drinking pattern established in 1946 and 1947. To accept that the drinking in the 1960s was caused by war service would mean accepting that he had experienced some trauma, had the trauma completely under control for many, many years and then inexplicably as he gets older his trauma reappears and causes him to drink more (Transcript page 81, line 22-27). Dr Byrne stated that the response to trauma is at its maximum immediately after the trauma and with the passage of time, people's symptoms tend to diminish.
Legislation
The standard of proof required to link war service with the veteran's hypertension is delineated in subsections 120(1) and (3) of the Act:
"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.
…"

Section 120A of the Act is also attracted in that the veteran's claim was lodged after 1 June 1994. The reasonableness of any hypothesis raised must be assessed in terms of SoPs issued by the Repatriation Medical Authority. The parties agreed that the relevant SoPs were Instruments Nos 83 of 1995 and 5 of 1994 (this agreement was reached in light of the decision of Keeley v Repatriation Commission (1999) 56 ALD 455, [1999] FCA 1103, 13 August 1999). Section 120A of the Act states:

"120A (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 operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.

(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.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
(b)       the kind of disease contracted by the person; or
(c)       the kind of death met by the person;
as the case may be."

Application of the SoPs

In the Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Court of the Federal Court stated, at 206, 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."

The hypothesis raised by the applicant

The applicant contends that his hypertension is connected with the circumstances of his operational service on the basis that he was suffering from alcohol dependence or alcohol abuse involving the consumption of an average of at least 200 grams per week of alcohol at the time of the accurate determination of hypertension. This alcohol dependence it is claimed relates to circumstances of service in 1946 and 1947 and/or to trauma suffered during operational service in the South West Pacific.
The Tribunal is required to assess the reasonableness of this hypothesis in terms of the SoPs as outlined previously.
The applicant also contended that his accepted condition of generalised anxiety disorder should be changed to generalised anxiety disorder with alcohol dependence and that the accepted condition of generalised anxiety disorder should be altered to post traumatic stress disorder with alcohol dependence. The Tribunal agrees with the respondent that the issue of the preferred diagnosis of the applicant's accepted disability is not a matter before this Tribunal.
The applicant must first satisfy the requirements of SoP Instrument No. 83 of 1995 and Instrument No. 5 of 1994 before the reasonableness of the hypothesis may be considered.
The material before the Tribunal pointing to an hypothesis connecting the development of hypertension with the circumstances of service
The applicant has suffered from hypertension since 1970 at which time he commenced anti-hypertensive therapy. He continues on therapy to this day. He commenced drinking to excess in 1946 upon his return to Australia from the South West Pacific. This pattern continued in 1946 and 1947 while he was working in the Education Store in St Kilda. By his own evidence, the reason he commenced drinking to excess was because he was bored with the work he was asked to do and frustrated at having to stay in the Armed Forces for a further 18 months after the war had officially ended. Following his marriage in 1948 and the assumption of responsibilities of marriage and rearing a family, combined with his work responsibilities and further education undertaken in the evenings, the applicant's alcohol intake was markedly reduced to one bottle of beer on a Friday night. This pattern of drinking, i.e. one bottle on Friday nights was maintained until the mid-1960s and the data suggests until 1965. After 1965 the applicant's alcohol intake increased and, on his evidence, did so for a combination of reasons, partly social, partly economic and partly work-related. Mr Watson-Munro had expressed the opinion that the applicant's hypertension was connected causally to his accepted anxiety disorder (which he has diagnosed as post traumatic stress disorder). In contrast Dr Byrne was of the opinion there was no relationship between war service, the accepted anxiety disorder and the resumption of drinking to excess in the mid-1960s.
After considering all the material before it, the Tribunal determines that a hypothesis has been raised connecting the applicant's hypertension with the circumstances of his operational service. The Tribunal is therefore required to consider the material in terms of the relevant SoPs. The Tribunal acknowledges that it has accepted the parties' agreement that the relevant SoPs are Instrument No. 83 of 1995 concerning hypertension and Instrument No. 5 of 1994 concerning psychoactive substance abuse or dependence. This acceptance by the Tribunal is made in light of the decision in Keeley v Repatriation Commission which, following the decision of the Full Court of the Federal Court of Australia upholding the decision of the primary judge, is to be appealed to the High Court.
Are the relevant SoPs satisfied by all the material before the Tribunal
the applicant's written submission
The applicant agrees that the heavy drinking in 1946 through to 1947 resulted from annoyance, indignation and frustration at not being discharged at the end of the war in the Pacific. The applicant also argued that factor 1(b) of the Instrument No. 83 of 1995 was satisfied as was factor 1(a) in Instrument No. 5 of 1994. The applicant's submission also referred to the findings of the Full Court in Repatriation Commission v Keeley [2000] FCA 532 and to the methodology outlined in Repatriation Commission v Deledio (1998) 49 ALD 193. The applicant submitted that the material before the Tribunal was not disproved beyond reasonable doubt. In the final submission, the legal representative of the applicant conceded that the veteran does not at present qualify for the extreme disablement adjustment.
The respondent's final submission on entitlement and assessment
The respondent submits that the evidence before the Tribunal disproves the proposition that the applicant's alcohol consumption was related to stressful events on service and that, on the balance of probabilities, the applicant does not suffer psychoactive substance abuse or dependence as defined in the relevant SoPs.
Conclusion
The Tribunal has found that a hypothesis exists linking war service to increased alcohol intake during the period of 1946 to early 1948. However, any linkage to the development of hypertension in 1970 and the resumption of excessive alcohol intake in the late 1960s is, at the best, very tenuous. On his own evidence, the applicant attributed his excessive alcohol intake in 1946 to early 1948 to boredom and frustration at being retained in the Armed Forces after peace was declared in the South Pacific. Following his marriage in 1948 his drinking was greatly diminished and he had one bottle of beer on a Friday night. This level of drinking does not indicate any alcohol abuse or alcohol dependence. Some 15 to 17 years later, the applicant's alcohol consumption increased to a level where he was drinking six out of seven days of the week. Again, on his own evidence, he attributed this to a change in family responsibilities, his seniority within TAA, the requirement for him to travel overseas where he was entertained socially and an increase in disposable income associated with his seniority in TAA. There was no evidence that the increase in alcohol intake from the mid-1960s onwards interfered in any way with his performance at work and there was only one incident wherein he was charged with driving above .05 blood alcohol level and this charge was not substantiated for technical reasons. Following this episode he never again drove after he had been drinking, leaving the driving to his wife. His hypertension was diagnosed in 1970 and treatment commenced in that year. He stated he had never been advised by any medical practitioner to reduce his alcohol intake. Since retirement the applicant has continued to drink three to four beers per day and has in recent years joined the RSL. He gave evidence and reported to Dr Byrne, that since joining the RSL, his memories of war days had been more acute but prior to that time he denied flashbacks and nightmares attributable to his war service. On the basis of the applicant's own evidence, the Tribunal is satisfied that the relevant SoPs are not satisfied. As the hypothesis raised fails to fit within the template of the SoP, the hypothesis is not reasonable.
The Tribunal is satisfied beyond reasonable doubt that the applicant's hypertension did not arise from a war-caused injury. The absence of any evidence of alcohol abuse or dependence between the period of 1948 and 1964 or 1965 negates any connection between the existence of hypertension in 1970 and the alcohol abuse which persisted for two years from 1946 to 1948 and has been attributed to the applicant's boredom whilst working at the Education Store in St Kilda.
The applicant's claim is unsuccessful and the decision under review is affirmed.
I certify that the thirty-four (34) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E. A. Shanahan, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  28 April 2000
Date of Decision  21 July 2000
Solicitor for the Applicant         De Marchi and Associates
Solicitor for the Respondent    Mr K. Herman, Departmental advocate