Carter and Repatriation Commission - [2001] AATA 445

DECISION AND REASONS FOR DECISION [2001] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/230

VETERANS' APPEALS DIVISION       )
           Re      Robert James CARTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date24 May 2001
PlaceSydney

Decision The Tribunal: 1 Sets aside the decision of the Repatriation Commission ("the Respondent") dated 16 July 1998 that refused the claim of Robert James Carter ("the Applicant") that his condition of hypertension was war-caused; and 2. In substitution therefor the Tribunal determines that the Applicant's condition of hypertension is war-caused, and that pension is payable in respect of that condition on and from 2 April 1998; and 3. The matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.

..............................................
M T LEWIS
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - operational service - whether relevant factors in Statement of Principles for "Hypertension" and "Alcohol Dependence or Alcohol Abuse" met - whether reasonable hypothesis raised that Applicant's "hypertension" was war-caused - whether Applicant's drinking amount to "alcohol abuse" - whether alcohol abuse involved "daily" consumption of alcohol - whether reasonable hypothesis disproved beyond reasonable doubt

Cooke v Repatriation Commission (1998) 90 FCR 307
East v Repatriation Commission (1987) 16 FCR 517
Gorton v Repatriation Commission [2001] FCA 286
Re Nolan and Repatriation Commission [1999] AATA 854
Repatriation Commission v Deledio (1999) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley (2000) 98 FCR 108
Shelton v Repatriation Commission (1999) 85 FCR 587

Veterans' Entitlements Act 1986: subss120(1), 120(3) and 120A
Statement of Principles, Instrument No 83 of 1995 and No 5 of 1994 (Hypertension)
Statement of Principles, Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 16 July 1998 that determined that the condition of hypertension suffered by Robert James Carter ("the Applicant") was not war-caused. That decision was reviewed by the Veterans' Review Board and on 21 January 1999 the decision of the Respondent was affirmed. The Applicant then sought review by this Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing, and oral evidence was also given by Janelle Jurd and Dr Miller, called on behalf of the Applicant. The following documents were tendered on behalf of the Applicant –

Report of Dr V K Mehta dated 28 May 1999 (exhibit A)
Reports of Dr M G Miller, consultant physician dated 10 November 1999 (exhibit B) and 28 June 2000 (exhibit C)
Statement of Janelle Jurd dated 3 July 2000 (exhibit D)
Statement of the Applicant dated 8 September 19999 (exhibit E).

The following documents were tendered on behalf of the Respondent –

Report of Dr A J Hickey, cardiologist, dated 20 September 1999 (exhibit 1)
Report of Dr G Vickery, psychiatrist, dated 21 February 2000 (exhibit 2).

In addition to these exhibits, the Respondent tendered a vial containing 12 grams of table salt provided to the Applicant in the course of cross-examination, to obtain evidence of the amount of salt he put on his meals (exhibit 3), and a vial containing approximately 1.6 grams of table salt that the Applicant identified during cross-examination to be the amount he applied to his meals (exhibit 4).

The Applicant was born on 12 August 1921. He served in the Royal Australian Air Force ("the RAAF") from 22 December 1942 until 16 April 1946, including two tours of duty in New Guinea. Therefore, his service is operational service and as such his claim is to be determined pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act").
The primary decision in respect of hypertension was made on 16 July 1998 and it was submitted for the Respondent that, applying the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108, the Applicant is required to rely on his accrued rights to have this matter determined using the Statements of Principles relevant at the time the primary decision was made. Although initially submissions were made on behalf of the Applicant that he wished to waive his accrued rights, they were withdrawn after the Federal Court handed down the decision in Gorton v Repatriation Commission [2001] FCA 286. Hence, the lengthy legal submissions regarding which Statements of Principles should be applied do not now need to be considered.
The Applicant sought to have this matter considered in respect of two factors in the Statement of Principles for Hypertension, that being his alcohol consumption and his salt consumption, both of which he attributes to his operational service. There is no evidence that the Applicant suffered from hypertension prior to his service, and therefore aggravation is not at issue. The Statement of Principles for Hypertension, Instrument No. 83 of 1995, allows in respect of alcohol and salt consumption, viz. –
1(b)suffering from psychoactive substance abuse, involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
(c)ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension.
The Applicant's hypertension was first diagnosed and treatment commenced about 1950. It was conceded for the Respondent that this could be taken as being the time of clinical onset of the condition. The Tribunal so finds.
The Salt Evidence
The Applicant's evidence was that he used almost no salt before he joined the RAAF, but he ate food cooked with salt in it. During his service in the tropics he was required to take two salt tablets a day. When he cooked in the RAAF he added salt to make the food palatable. After discharge he salted all his food to improve its taste. He would add salt to raw vegetables when he ate them from the garden.
The evidence of the Applicant's daughter, Mrs Jurd, was consistent with that of the Applicant. She said he stopped using salt in heavy quantities some time before she left home in 1967. The Applicant's evidence was that he cut back on his salt intake in the 1960s or early 1970s because he was told to do so by his doctor.
Alcohol consumption
The Applicant completed an Alcohol Questionnaire dated 21 August 1995 (T5) in which he said he ceased drinking alcohol in 1945 because it was affecting his health. He also said that he commenced drinking in 1943 because of "Departmental Issue". He drank "beer and jungle juice". However, a week later his daughter, Mrs Jurd, wrote to say that the Applicant's alcohol questionnaire was not completed correctly. She noted that he drank heavily during service because of stress. She said that he ceased drinking in the 1960s. The Tribunal notes that the Applicant has countersigned Mrs Jurd's letter. Mrs Jurd provided a further written statement, undated, that apparently was put before the VRB in January 1999 (T17, p79), advising that the Applicant admitted to her that he resumed smoking and drinking in 1984 when her mother died. He also told her that he gave it up again in 1986 or 1987, and she noted that he never lied. She also said that he became depressed and quite irritable.
Dr Mehta, the Applicant's local medical officer, reported on 28 July 1995 (T9) that the onset of the Applicant's psychoactive substance abuse or dependence involving alcohol commenced in 1943. He noted that the Applicant had "stressful service".
In his statement dated 8 September 1999 (exhibit E) the Applicant said he commenced drinking regularly on service due to the stress of being in an operational area. After returning to Australia he consumed 3 to 4 middies a day and 6 schooners on weekends, and that level of alcohol consumption remained consistent until 1996 or 1997.
The Applicant admitted to Dr Miller (exhibit B and C) that his earlier statements about his drinking were incorrect. He told Dr Miller he continued drinking heavily after discharge. He drank home brewed beer, about 8 schooners or more a day, until 1986. He then ceased drinking for a few years and then drank about 6 schooners of commercial beer a day until about 1996. However, the Applicant's oral evidence to the Tribunal was that this was not correct. Dr Miller acknowledged in his oral evidence that he did not have a personal interview with the Applicant, but had two telephone conversations with the Applicant and did not consider that he obtained a full history.
The Applicant's evidence to the Tribunal was that occasionally he drank socially prior to his service, but he started to drink regularly after spending about a month in Port Moresby on his first posting to New Guinea. He said he started drinking after air raids. He said he was at the airfield at Port Moresby when over 100 aeroplanes bombed and he also experienced a number of night raids. He said he wondered if he would get home, and he drank to try to stop thinking about what might happen. He said that the people with him also drank. He drank 3 or 4 drinks of "jungle juice" mixed with orange juice. The jungle juice was distilled by other servicemen. He said he drank on 5 or 6 nights a week. He also said he drank more after he was posted to Milne Bay where they were camped at the end of a bomber strip. He said there were Japanese stragglers in the area and he wondered whether he might be killed. He said he had 4 drinks of jungle juice nearly every night.
When the Applicant returned to Australia after his first tour of duty he suffered from nightmares. He drank with his mates five days a week. He spent the weekends with his mother and brother, and although he might have a beer there he would not get drunk when at home.
The Applicant said he continued his drinking when he returned to New Guinea but this reduced when he was at Bougainville. In cross-examination he said he reduced or stopped drinking for a while in Bougainville because an officer "had it in for him" and the Applicant was thinking about his wife. He said in cross-examination that he wrote in his statement that he ceased drinking in 1945 because he had ceased in Bougainville for a short time. However it increased when he went to Finchhaven. He made his own alcoholic drink there from fruit. He said he used to drink every evening to get "merry" and to put himself to sleep. He said he drank because he was worried about his wife and child.
The Applicant said that after he returned to Australia it was difficult to get bottled beer. He used to go to the hotel abut three days a week and he drank 3 or 4 schooners. Later, when he lived at Canberra, he went shopping on Saturdays and had 3 or 4 schooners.
In 1948 he moved with his family to Newcastle. At the end of 1948 or beginning of 1949 he commenced brewing 4 gallon quantities of beer at home. He said he would drink 3 or 4 bottles in his shed at night. He would return to the house when his wife turned off the light in the shed. He said he drank every night except Sundays. This drinking pattern continued until 1959 when he moved. The Applicant's evidence on his drinking at this time was corroborated by his daughter, Mrs Jurd. The Tribunal agrees with the calculation of Counsel for the Applicant that this is the equivalent of consuming 546 grams of alcohol a week during the period 1949 to 1959.
The Applicant said that he drank until about 1955 to forget what had happened during the war, but after that time he drank because of other stresses.
The Applicant said that he moved house in 1959 and he did not continue to brew his own beer there because his neighbours would have been able to smell it. He said he then went to the RSL club two or three times a week, when he would drink 3 or 4 schooners of beer. He also had a friend who invited him to drink at his shop about four days a week.
The Applicant said that he reduced his drinking when his wife became seriously ill. He was not sure when that was. He said he cut back on his drinking for about two years. He retired in 1980 and a few months later he started drinking again. At that time he would have drunk three or four schooners, five days a week. After his wife died in 1984 he drank a dozen or more cans of beer every day.
The Applicant had been warned by a doctor about 1957 or 1958 to discontinue his heavy drinking, but although he decreased his drinking for a short while he then increased it again. He said he stopped drinking in 1986 on the advice of Dr Mehta, who advised that he would die if he did not stop.
The Applicant said that he joined the Church of Christ in about 1957 and was a lay preacher for one or two years around 1957-58. Mrs Jurd, in her evidence, thought that he had been a lay preacher for a longer period. The Applicant said he felt very guilty about drinking in the shed while he was a lay preacher. He said he drank in the shed because his wife "would get on his back" and he did not want to drink in front of his children. He thought it was wrong to go to church and persist with his heavy drinking. He said his wife became upset with him because of his drinking and this also made him feel guilty. However he would then think of the horrible things that he saw while he was away at the war. He said she would not talk to him and would "ball him out", but it would then be forgotten and they did not fight.
The Applicant agreed that his drinking did not affect his attendance or performance at work, and did not cause any problems with the law. He was not late for work, he did not attend work with a "hang over" from the previous night's drinking, he had "very good" relations with his co-workers, he was not involved in fights or arguments because he had had too much to drink, nor did he drink so much that it interfered with his use of equipment at work.
Dr Vickery
In his report dated 21 February 2000 (exhibit 2) Dr Vickery stated –
Mr Carter reported that his work mates at the bus depot would consume similar amounts of alcohol and he did not consider his drinking was "out of the norm". He did not report that alcohol affected his work and his children had not seen him intoxicated apart from Anzac Day. His wife worried about his drinking at times however there was no major conflict between them. He did not lose time from work and did not appear to have any medical problems associated with his alcohol intake. He was not violent while drinking and did not appear to have blackouts or seizures.
On interview, Mr Carter was relatively relaxed, responsive, spontaneous and orientated. He was well groomed, appropriate in mood and affect and able to give a clear and chronological history. There was no evidence of anxiety symptoms, major depression, thought disorder, paranoia, delusional ideation or gross cognitive impairment.
In conclusion, Mr Carter was involved in distilling and supplying alcohol while in the Armed Forces and continued this clandestine activity when he returned home. He was a "closet" drinker however his intake would appear to have been considered within "the norm" and did not significantly interfere with his health, employment, family relationships, social relationships or quality of life. I would not view his raised level of alcohol consumption as being "caused" by his war time service and his alcohol consumption did not appear to have significantly affected his psychiatric status or his general health or employment and would not be considered compensible.

Dr Miller

In his report dated 10 November 1999 (exhibit B) Dr Miller documented a detailed history of various stresses suffered by the Applicant during his overseas service, the details of which do not need to be recorded here. Suffice it to say that these detailed accounts provide some substance for the Applicant's generalised statement in his oral evidence that he saw some "horrible things" during his service. The history obtained by Dr Miller of the Applicant's drinking habit was in general consistent with that provided to the Tribunal by the Applicant in his oral evidence. In respect of any discrepancy between Dr Miller's recorded history and the Applicant's evidence and Mrs Jurd's evidence, the Tribunal prefers the evidence of the Applicant and Mrs Jurd. The Tribunal notes Dr Miller's admission in his oral evidence that he had not had the opportunity to take a full history and that therefore there may be some inadequacy in the history recorded.
SUBMISSIONS
It was submitted for the Applicant that, applying the decision of the Full Court in Cooke v Repatriation Commission (1998) 90 FCR 307, the Tribunal is required to determine all aspects of the Applicant's claim using the reasonable hypothesis standard of proof. It was submitted that Cooke is not authority for the decision regarding the diagnosis of the claimed condition being on the balance of probabilities. Cooke is authority for the need to determine on the balance of probabilities whether the Applicant suffered from a disease, but not the diagnosis of that disease. It was submitted that the Federal Court in Repatriation Commission v Gosewinckel [1999] 59 ALD 690 was mistaken about the issue that arose in Cooke, but acknowledged that the Tribunal is bound to apply Gosewinckel. The issue in dispute in Gosewinckel was whether the veteran suffered from an anxiety disorder or two specific phobias. It was submitted that in the matter now before the Tribunal there is no dispute that the Applicant suffers from hypertension. The issue is whether the Applicant suffered from substance abuse in 1950. It was submitted that Gosewinckel deals with the standard of proof to be applied in determining the nature of the disease or injury that is the subject of the claim. It did not decide that the diagnosis of a disease that forms part of the hypothesised connection is to be determined on that standard, nor does the reasoning of Cooke and Gosewinckel provide any support for such a construction.
It was submitted for the Applicant that his memory for dates was not good, and this was probably affected by the passage of time and by his drinking. He gave his evidence in a direct and plausible way and had no difficulty in his oral evidence in adding a lot of detail to the information he had provided prior to the hearing. It was submitted that the Tribunal should be satisfied that he endeavoured to give a full and accurate account of himself although he was not always able to do so. However, the general thrust of his evidence has generally been consistent and was supported in important respects by the evidence of his daughter, Mrs Jurd.
The hypothesis on which the Applicant relied is that he developed a taste for salt with his food when he was in the Army and this led to a salt habit that met the requirements of the Statement of Principles for Hypertension, factor 1(c). In the Statement of Principles the term "additional" when referring to the ingestion of 12 grams per day of salt, is not clear. It was noted that when the 1995 Statement of Principles was revoked and replaced by factor 5(c) of Instrument No. 25 of 1999 reference is made to "salt supplements", meaning "salt added to food when cooking or eating, or salt continued in salt tablets".
It was submitted that on the evidence of the Applicant he used practically no salt before enlistment except for that used in the cooking of his food. He was required to take two salt tablets a day while serving in the tropics and when he did the cooking he added salt to make the food palatable. After discharge he salted everything because it made food taste better. He added salt to his food at the table and to raw vegetables when he ate them from the garden. Moreover, the evidence of his daughter, Mrs Jurd, was consistent with the Applicant's evidence. She said that he reduced his salt intake some time before she left home in 1967. The Applicant said he reduced his salt intake when advised by his doctor to do so in the late 1960s or early 1970s.

It was submitted that the exercise given to the Applicant in cross-examination to demonstrate on an empty dinner plate how much salt he used some 30 or 40 years previously, was artificial. Moreover, it did not take into account the amount of salt that had been added in cooking his food, nor did it take into account any preference he might have had for processed foods with a high salt content.
It was submitted that the Applicant's evidence points to, and does not merely leave open, the possibility that a taste for salt acquired on service contributed to the consumption of 12 grams or more of "added" or "supplementary" salt a day. There is no evidence before the Tribunal that could satisfy it beyond reasonable doubt that this is not the case.
In respect of the Hypertension Statement of Principles, Instrument No. 83 of 1995, that required psychoactive substance abuse involving daily consumption of alcohol, it was submitted, following the Federal Court in Gorton (supra), that it was open to the Tribunal to find that the applicant's drinking "involved daily consumption of alcohol" on the basis that he was drinking every day, other than on Sundays. As the decision in Gorton was handed down during the protracted period when the parties were making written submissions following the hearing in this matter, earlier concessions made on this issue by the Applicant's Counsel were withdrawn.
Submissions were made for the Applicant in respect of the 1999 Statement of Principles for Hypertension in the alternative. The Tribunal does not propose to consider those alternatives because of its determination in respect of the 1995 Statement of Principles.
It was submitted for the Respondent that, applying factor 1(c) of Instrument No. 83 of 1995 for Hypertension, there was evidence that prior to his service the Applicant's food was cooked using salt and salt was also added to his food before eating. It was submitted that factor 1(c) requires ingesting an additional 12 grams of salt per day, that is, 12 grams more per day than would normally have been consumed by the Applicant. It was submitted that salt in food cooked by his wife and salt in processed food is not included in that category of use. It was submitted that there was no evidence that the Applicant sought out processed foods in which there was a higher salt content. It was submitted that there was no probative evidence before the Tribunal that the Applicant ingested an additional 12 grams of salt per day for a continuous period of at least six months immediately before the clinical onset of his condition about 1950. The Respondent relied on the Tribunal decision Re Nolan and Repatriation Commission [1999] AATA 854 in that regard.
It was submitted for the Respondent that the Tribunal cannot make an inference that the Applicant ingested an additional 12 grams of salt per day for the prescribed period, and noted that the evidence must point to each individual element in the factor of the Statement of Principles for the hypothesis to be reasonable. It was also submitted that there is no evidence before the Tribunal that the Applicant's consumption of salt was caused or contributed to by his operational service. The Tribunal cannot make an inference that the Applicant developed a salt habit on service. There must be evidence that he increased his consumption of salt because of his operational service. It was submitted that as no reasonable hypothesis has been raised in respect of the salt hypothesis, it is not necessary to consider the application of s 120(1) of the Act.
The submissions for the Applicant about using the later Statement of Principles were subsequently withdrawn by his Counsel, thus the Respondent's submissions were based on the Applicant seeking to have the matter determined pursuant to the current Statement of Principles for Hypertension Instrument No. 25 of 1999, and for Alcohol Dependence or Alcohol Abuse Instrument No. 76 of 1998. Although Counsel for the Applicant advised the Respondent's representative of the withdrawal of that part of his submissions, no further submissions for the Respondent have been made on the earlier Statements of Principles.
It was submitted that the Applicant does not satisfy the definition of "alcohol abuse" in Instrument No.76 of 1998 on the balance of probabilities. The Respondent relied on the decision of the Full Federal Court in Shelton v Repatriation Commission (1999) 85 FCR 587 that there needs to be a disease entity, that is, a maladaptive pattern of use of alcohol, to meet the Statement of Principles. If the level of drinking does not constitute a maladaptive pattern of use of alcohol then "alcohol abuse", as defined in the Statement of Principles, does not exist. In respect of the matter now before the Tribunal it was submitted that, on the balance of probabilities, the Applicant did not suffer from the disease of alcohol abuse by the time his hypertension was clinically manifested about 1950. In respect of this the Respondent relied on the report of Dr Vickery (exhibit 2).
It was submitted for the Respondent that the Applicant's evidence did not suggest in any way that his drinking affected his work or his relationships with others. Dr Miller did not ask him about the affect of alcohol on his work performance, nor did he think it was relevant because he had already decided that there was conclusive evidence that the Applicant had social problems with respect to his drinking. It did not cause him to be in trouble with the law. He acknowledged that he had a very happy relationship with his wife. Although she would "bawl him out" in relation to his drinking it would then be forgotten. It was submitted that the Applicant relied on the opinion of Dr Miller that he suffered from alcohol abuse before the clinical onset of his hypertension, but it was noted that Dr Miller took an incomplete and inaccurate alcohol history from the Applicant. The inaccuracy related to the Applicant ceasing drinking in 1996 whereas on the Applicant's evidence to the Tribunal he ceased in 1986. It was also submitted that Dr Miller admitted that he did not take a complete history and that Dr Vickery, who conducted two interviews with the Applicant, provided evidence that the Tribunal should prefer. In coming to an assessment that the Applicant suffered from alcohol abuse or dependence, Dr Miller relied on the fact that he was a lay preacher and said he felt guilty about his drinking. However, Dr Miller was not aware that the Applicant was a lay preacher in 1957 and 1958 only. The Respondent submitted that as this was after the clinical onset of the Applicant's hypertension it was not relevant in respect of whether he suffered from the disease of alcohol abuse prior to 1950.
It was submitted that tension between the Applicant and his wife because of his drinking, and feeling guilty about his consumption of alcohol, was not enough for his drinking to be found to be "alcohol abuse". In order for him to suffer from the disease of alcohol abuse there must be significant impact on his health, employment, family relationships, social relationships or quality of life prior to the clinical onset of hypertension in 1950.

It was submitted for the Applicant in reply that the Applicant was a "closet" drinker, drinking 3 or 4 bottles of beer a night in a shed until his wife turned the lights out. This is a "maladaptive pattern of alcohol use". It was submitted that he continued with this behaviour despite the fact that it led to his wife not talking to him and bawling him out. He failed "to fulfil major role obligations at home" in that he drank by himself rather than spending time with his wife. It was also submitted that most of the time he spent with his wife must have been while he was under the influence of alcohol. The fact that the Applicant considers that apart from his drinking he had a happy relationship with his wife is beside the point. The relevant factor is the effect his alcohol consumption had on his capacity to fulfil his role as a husband.
It was submitted for the Respondent that the Applicant does not satisfy the definition of "alcohol dependence" in the 1998 Statement of Principles on the balance of probabilities. There is no evidence that he had a psychological addiction to alcohol. He has not had withdrawal symptoms, he was able to stop drinking at various times and he did not drink on Sundays.
It was submitted that if the Tribunal accepts that on the balance of probabilities the Applicant suffers from alcohol abuse or dependence, he does not satisfy factor 5(b) of Instrument No. 76 of 1998. Factor 5(b) requires "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". It was submitted that there was no material that pointed to the Applicant having experienced a severe stressor on service.
It was submitted for the Applicant in reply that the Applicant's service in Port Moresby where he experienced air raids and thereafter commenced drinking on a regular basis satisfies the definition of "experiencing a severe stressor". He said he drank to try to stop thinking about what might happen. It was submitted for the Applicant that on calculations based on his evidence he drank between 6 and 12 standard drinks per night while on operational service. It was submitted that this pattern of drinking constitutes "recurrent alcohol use in situations in which it is physically hazardous" insofar as that drinking occurred while he was in a war zone. It was estimated that he must have been under the influence of alcohol for some hours on most days, and therefore his life and those of others could have been dependent on his ability to take appropriate measures if an attack had occurred.
It was conceded for the Respondent that if the Tribunal accepts that the Applicant satisfied factor 5(b) of Instrument 76 of 1998 for Alcohol Dependence or Alcohol Abuse, then factor 5(b) of Instrument 25 of 1999 for Hypertension is satisfied.
CONSIDERATION OF EVIDENCE AND FINDINGS OF FACT
At the outset the Tribunal notes the very limited usefulness of the report of Dr Vickery (exhibit 2). Despite the acknowledgment of Dr Miller in his oral evidence that he did not take a full history from the Applicant because his contact was confined to two telephone calls, the Tribunal notes that he appears to have obtained a much more detailed history than that reported by Dr Vickery. It should be noted, too, that it is unhelpful to the Tribunal for medical experts to opine on what they consider to be "compensible". It is Dr Vickery's role to provide an opinion on whether the Applicant suffered from alcohol abuse or dependence, and not to consider whether it was "caused" by his war service. Indeed, the same could be said in respect of the report of Dr Miller. It would also be more helpful if Dr Miller's report was confined to the issue of the Applicant's alcohol dependence or abuse, the factors that triggered it, and the course it took. The provision of a legal opinion as to whether he satisfied the Statement of Principles and that there was a reasonable hypothesis that his hypertension relates to his war service should be left to the Tribunal. I hasten to add, however, that the history obtained from the Applicant by Dr Miller, albeit not a full history on his own admission, nonetheless provided helpful information about the stressors experienced by the Applicant on service, that enable the Tribunal to find that he experienced "stressful events" on service sufficient to meet that definition in the Statement of Principles for Psychoactive Substance Abuse or Dependence.
In determining whether the Applicant's condition of hypertension is causally related to his service in accordance with s 120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio (1999) 83 FCR 82 at 97-8 –
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 ss196B(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 no 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.
Applying the decision of the Full Federal Court in Keeley (supra) the Applicant is able to rely on his accrued rights to have this matter determined in accordance with the relevant Statements of Principles in place at the time the primary decision was made. The relevant Statement of Principles for Hypertension at the time the primary decision was made is Instrument No. 83 of 1995. As a link in the chain of causation in meeting factor 1(b) of the Hypertension Statement of Principles is his suffering from psychoactive substance abuse, Statement of Principles for Psychoactive Substance Abuse or Dependence, Instrument No. 5 of 1994, must also be met.
On the evidence of the Applicant the Tribunal finds, contrary to the submissions for the Respondent, that the Applicant suffered a "stressful event" during his service in New Guinea. His evidence was that he experienced air raids while at Port Moresby, including one involving more than 100 aircraft, and some air raids during the night. He was camped at the end of the airstrip, and understood that the enemy was trying to bomb the main airstrips. He said he did not know whether he was going to die. He commenced drinking soon after the air raids so as to try to stop thinking about it. The Tribunal also finds on the evidence that the Applicant continued to drink over many decades, despite having been told by his doctor to stop drinking because of his health, and despite feeling guilty about his drinking. On the basis of this finding the Tribunal finds that the Applicant meets the definition of "psychoactive substance abuse or dependence" in Instrument No. 5 of 1994. Finally, the Tribunal finds on the evidence that the Applicant meets factor 1(a) of that Statement of Principles.
Turning again to the Hypertension Statement of Principles, factor 1(b) requires:
Suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;

The parties agree that the clinical onset of the Applicant's hypertension was about 1950. The Tribunal finds, on the evidence of the Applicant, that his pattern of drinking by 1950 was well established and clearly excessive. By that time the Applicant was brewing his own beer, he was drinking every night in the shed where he brewed, and the quantity he was consuming was 546 grams of alcohol a week. On his evidence he was also drinking six days a week. He abstained from drinking on Sunday. Moreover, he was drinking in order to try to forget the memories of the horrible things he saw during the war.

The question is whether his alcohol abuse involved "daily" consumption of alcohol. The Tribunal notes that since taking evidence in this matter, and during the period when the parties were developing their written submissions, the decision of Stone J in the Federal Court in Gorton (supra) interpreted the term "involving daily consumption of alcohol" in Instrument No. 83 of 1995. Her Honour said (at 27) –
… as Barry J commented in Foster v Howard [1949] VLR 311 at 311, it is an adjective "the precise meaning of which is to be ascertained from the context in which it is used and particularly the substantive which it qualifies". In my opinion, the precision which the term conveys will differ depending on whether it is used prescriptively or descriptively. A doctor's instructions that medicine is to be taken daily may easily be understood as meaning every day. However, we would not generally cavil at the description of a doctor's daily visits to a hospital if he did not generally go on Sundays. We would still regard it as accurate to describe an athlete as training daily even though it turned out that she missed a number of days a year. I do not accept that the phrase, "daily consumption of alcohol" in Instrument 83 could only apply to a veteran who drank every day without exception. Even if that meaning were to be accepted, there would still be the problem of the period over which the "daily" consumption had to be proved. It is neither necessary nor possible to give here a precise meaning to the term. However, for the purposes of formulating a hypothesis to be tested against the Statement of Principles in Instrument 83, I am satisfied that the qualification, "just about daily", is sufficient for the hypothetical facts to fit the description of daily consumption in clause 1(b) of Instrument 83. Whether the applicant's drinking fits that description is a question which did not need to be addressed in the context of Deledio step 3.
Applying Gorton, the Tribunal finds that the Applicant's abuse of alcohol six days a week on a regular basis meets that part of factor 1(b) referring to the "daily" consumption of alcohol. The Applicant's alcohol abuse on a "daily" basis continued at least until the accurate determination of hypertension in about 1950. Indeed, with only short intervals of reduced drinking, this pattern continued until 1986.
The Tribunal notes the submissions for the Respondent to the effect that a reasonable hypothesis has not been raised on the facts. To this the Tribunal would say that the Respondent's advocate did not appear to understand the test to be applied by the Tribunal, as described in Deledio (supra). It is not the case that the Tribunal must determine on the balance of probabilities that the Applicant suffers from psychoactive substance abuse, although in fact the Tribunal is indeed so satisfied. All that is required is that the facts raised meet the relevant Statement of Principle. The truth of the matter is not at issue in raising the facts. Whether the raised facts are true is not considered until after the Tribunal has determined that the hypothesis is reasonable on the basis of the raised facts. Then the matter must succeed unless the truth of the facts, pursuant to s120(1) of the Act, can be disproved beyond reasonable doubt. In this matter the Respondent appears to have approached the issues more as if it was a balance of probabilities matter.

The Tribunal finds that the material before it points to an hypothesis that the Applicant suffered from alcohol abuse arising from his war service that caused him to consume large amounts of alcohol on a daily basis before and at the time of the clinical onset of his hypertension, and continuing for decades thereafter. The Tribunal considers that the hypothesis is properly raised and is not one which is merely left open; East v Repatriation Commission (1987) 16 FCR 517. Factor 1(b) of Instrument No. 83 of 1995 for Hypertension has been met, and the Tribunal finds that a reasonable hypothesis has been raised.
Turning now to s120(1) of the Act (and step 4 of the Deledio test), the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's hypertension is war-caused. In so finding the Tribunal notes the limitations of the history taken by Dr Miller. The Tribunal also notes from the Applicant's evidence that he had some difficulty recalling dates and this has caused some discrepancy in the history he has given and the statements he has made from time to time. However, the Tribunal accepts the Applicant as a truthful witness who did not set out to misrepresent his case. His verbal ability was limited and the Tribunal agrees, on the evidence of Dr Miller, that the Applicant's cognitive ability could well be impaired by his heavy and longstanding alcohol consumption. However, these limitations in the evidence do not cause the Tribunal to be satisfied beyond reasonable doubt that the facts were not true. Indeed, the general thrust of the Applicant's case was very believable.
The Tribunal will therefore set aside the decision under review and determine that the Applicant's hypertension is war-caused, pursuant to s9 of the Act. All applications for review were in time, and therefore the earliest date of effect for payment of pension to the Applicant is 2 April 1998, being a date not earlier than three months before the Applicant lodged his claim. No evidence or submissions were provided in respect of assessment of the rate of pension payable to the Applicant, and therefore the Tribunal will remit the matter to the Respondent for assessment.
As the Applicant's case succeeds on the basis of factor 1(b) of the Hypertension Statement of Principles, it is unnecessary for the Tribunal to proceed to consider the "salt hypothesis". However, for the sake of completeness I shall consider that hypothesis, albeit briefly.
Factor 1(b) of Instrument No. 83 of 1995 requires –
Ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension.

The Tribunal is aware from exhibit 3 of the quantity constituting 12 grams of salt. The Tribunal interprets the phrase "an additional 12 grams per day of salt" to refer to the addition of salt in the process of cooking as well as when a meal is served. The practical effect of this is that the amount that was in the vial in exhibit 3 is the amount that needs to have been consumed by the Applicant, that is, added to his food during cooking or after it has been cooked, on a daily basis, for at least six months prior to the clinical onset of his hypertension in about 1950.

The Applicant's evidence was that he used very little salt on his meals before his service. While on service in the tropics he was required to take two salt tablets each day. In addition, when he was cooking he used salt to make the food palatable, and he also added salt to his food before eating it to make it tasty. After service he said he used large amounts of salt on his meal before eating it, as well as using salt on raw vegetables he picked from the garden. He said his family made critical comments about the large amount of salt he used. In cross-examination he demonstrated on an empty plate before him, the amount of salt he would have added to meals before he ate them, and this amounted to 1.6 grams per day (exhibit 4) when weighed later at the office of the Respondent. In addition, the food prepared for him each day had salt added to it in the preparation process. There was no evidence as to how much salt was added.
It is significant that in the Applicant's evidence he said he was a heavy user of salt after he returned from the Army and for many years, but no specific quantity was given as part of the facts raised. The Respondent assisted to some extent by having the Applicant demonstrate how much salt he would add to the food on his plate each day, and that weighed 1.6 grams, although I have to agree with Counsel for the Applicant that this demonstration was overly limited by its nature and the effluxion of time. The Tribunal does not deny its limited usefulness, but it does not go far enough. Factor 1(c) requires that the daily amount of added salt be at least 12 grams, whereas the evidence demonstrates that he used 1.6 grams daily on the food on his plate plus the salt that was added to his food in preparation. The Tribunal finds that the total amount of added salt each day is left open by the evidence: East (supra). No reasonable hypothesis has been raised when the fact on which the hypothesis is based is merely left open. Therefore, as no reasonable hypothesis has been raised pursuant to s120(3) of the Act the Applicant cannot succeed in respect of that hypothesis.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing   3 July 2000
Date of Decision   24 May 2001
Counsel for the Applicant         Mr C Colborne
Solicitor for the Applicant          Mr B Williams, Vardanega Roberts Solicitors
Solicitor for the Respondent    Ms S Beuer, Dept. of Veterans' Affairs