Davies and Repatriation Commission - [2001] AATA 257

DECISION AND REASONS FOR DECISION [2001] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos V1999/843
VETERANS' APPEALS DIVISION )

Re      PHILLIP DAVIES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent
DECISION

Tribunal Mrs J. Dwyer, Senior Member

Date30 March 2001
PlaceMelbourne

Decision      1.        The Tribunal varies the decision under review to provide: (a) that chronic sinusitis is a war-caused disease with effect from 11 June 1996.   (b)        that pension is payable at 90% of the general rate from 11 June 1996. 2.         In all other respects the decision under review is affirmed.
  (Sgd) Joan Dwyer
  Senior Member

DISABILITY PENSION - question which Statements of Principle apply – recent Federal Court decisions on issue – operational service and eligible service

CHRONIC SINUSITIS –- whether material before Tribunal points to a hypothesis connecting applicant's recurring sinusitis to operational service - evidence of mechanical obstruction impairing sinus drainage immediately before the clinical onset of chronic sinusitis while on operational service - chronic sinusitis war-caused

HYPERTENSION - whether material before Tribunal points to a hypothesis connecting applicant's alcohol consumption and hypertension with particular circumstances of operational or eligible service - whether excessive alcohol consumption during operational or eligible service resulted in clinical worsening of hypertension – clinical onset of hypertension – whether labile hypertension is hypertension-clinical onset after period of some weeks of operational service during which only alcohol was daily issue of one capful of rum - no evidence raising or pointing to alcohol abuse during that period of operational service - no evidence of clinically significant worsening of hypertension - decision affirmed

CERVICAL SPONDYLOSIS AND LUMBAR SPONDYLOSIS - whether trauma to the cervical spine and lumbar spine before clinical onset of spondylosis - no evidence before Tribunal raising or pointing to "trauma " during service - no reasonable hypothesis - decision affirmed

ASSESSMENT – consideration of impairment ratings for PTSD and irritable bowel syndrome – rate of pension varied––

Veterans' Entitlements Act 1986 ss 120(1) and (3) and 120A(3)

Arnott v Repatriation Commission [2000] FCA 262

Gorton v Repatriation Commission [2001] FCA 286

Keeley v Repatriation Commission (1999) 56 ALD 455

Re Olsen and Repatriation Commission [2000] AATA 909

Re Reading and Repatriation Commission [2000] AATA 841

Repatriation Commission v Keeley [2000] FCA 532

Re Ryan and Repatriation Commission [2000] AATA 849

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission [2000] FCA 1687

Harris v Repatriation Commission [2000] FCA 803

REASONS FOR DECISION

30 March 2001 Mrs J. Dwyer, Senior Member

This is an application for review of a decision of the Repatriation Commission, made 1 July 1997, refusing a claim (T4 pp37-45) made 11 September 1996 under the Veterans' Entitlements Act 1986 ("the Act") for medical treatment and pension for incapacity resulting from a number of conditions. Many of the conditions were accepted by the Repatriation Commission but the claims for chronic sinusitis, hypertension, duodenal ulcer and cervical and lumbar spondylosis were refused. The decision of the Repatriation Commission was affirmed by the Veterans' Review Board on 21 June 1999.
Bi-lateral sensori neural hearing loss was accepted as war-caused by the Repatriation Commission on 4 February 1997 with effect from 11 June 1996 (T5 pp46-49). The following conditions were accepted by the Repatriation Commission in the determination under review of 1 July 1997 (T14 pp77-84), also with effect from 11 June 1996:
Post traumatic stress disorder
Irritable bowel syndrome
Allergic rhinitis
Haemorrhoids
Tinea
Gastro-oesophageal reflux

Prior to the hearing Mr Davies' claim for duodenal ulcer was withdrawn.

Mr Davies was assessed as entitled to pension at 70% of the General Rate from 11 June 1996 by the Repatriation Commission (T14 p77). On 21 June 1999 that decision was set aside by the Veterans' Review Board which in substitution decided that pension be assessed at 80% of the General Rate from 11 June 1996 (T2 p10). Mr Davies now seeks to have the four conditions of chronic sinusitis, hypertension, cervical and lumbar spondylosis accepted as war-caused diseases under s 9 of the Act and also seeks an increase in the rate of pension payable.
Mr D. De Marchi, a solicitor, appeared for Mr Davies. Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Davies gave evidence. Evidence on his behalf was also given by Dr Cole, a psychiatrist. The respondent called Dr Rossiter, a medical adviser at the Department of Veterans Affairs. The Tribunal had before it the documents (the T documents) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and also the exhibits tendered during the hearing.
Mr Davies served with the Australian Army from 8 February 1958 to 17 February 1992. His operational war-service as defined in the Act was from 20 February 1964 to 5 April 1964 in Malaya and from 27 March 1968 to 28 February 1969 in Vietnam. He also has eligible war-service from 7 December 1972 to 17 February 1992. It is only those periods of operational and eligible service which are relevant to this application.
The circumstances in which a disease shall be taken to be war-caused are set out in s 9 of the Act. The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A
(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.
Note:   This subsection is affected by section 120A
Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides as follows:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or a determination of the Commission under subsection 180A (2);
(b)…
that upholds the hypothesis.
Because Mr Davies' claim was lodged after 1 June 1994, the provisions of ss 120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of each of the conditions in issue. The Tribunal must apply the relevant SoPs in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Davies' medical conditions with the circumstances of his particular service.
In Keeley v Repatriation Commission (1999) 56 ALD 455, Heerey J held that the relevant SoP is that which was in force at the time of the original decision. That decision was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532.
Mr De Marchi submitted that if a later SoP is more beneficial to a veteran, that SoP should be used. That argument was considered and rejected by the Tribunal in Re Reading and Repatriation Commission [2000] AATA 841 and Re Ryan and Repatriation Commission [2000] AATA 849. A contrary conclusion was reached in Re Olsen and Repatriation Commission [2000] AATA 909. That decision is now on appeal. However, since this matter concluded, the Federal Court has considered the issue in Arnott v Repatriation Commission [2000] FCA 262, 16 March 2001, (Full Court) and in Gorton v Repatriation Commission [2001] FCA 286, 21 March 2001. The Full Court in Arnott said that it was not necessary to decide which was the relevant SoP in that matter as the same outcome would be reached irrespective of which SoP were to be applied. In Gorton, Stone J held that the latest SoP should be applied unless an earlier SoP in force at the time of the primary decision is more favourable to the applicant. In view of those recent Federal Court decisions I have considered the current SoPs but have not found that they would be more favourable in respect of any of the conditions in issue.
In this matter the original rejection of Mr Davies claim was on 1 July 1997. Accordingly, the prevailing view prior to the Federal Court decisions of Arnott and Gorton was that the SoPs to be applied were those in force on that date. They are as follows:
Chronic sinusitis - Instrument No 211 of 1995
Hypertension - Instrument No 83 of 1995
Cervical Spondylosis - Instrument No 161 of 1996
Lumbar Spondylosis - Instrument No 165 of 1996

The hearing was conducted on the basis that it was my view that I was bound to apply those SoPs. I have now included reference to the latest SoPs except in respect of chronic sinusitis where there is no later SoP.

In approaching the Tribunal's task it is necessary to bear in mind the guidance given by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of SoPs. The Full Court, at p205, approved the following passage from the reasons of Heerey J, at p275:
The particular claim … has to fit the template laid down in the SoP.   …. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i)        contrary to proven or known facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)       (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more of the facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant.
The Full Court in Deledio, at p206, set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
1.    The Tribunal must consider all the material which is before it and determine whether that material points to an 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.
2.     If the material does not 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) … .
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 not 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 doing so, no question of onus of proof or the application of any presumption will be involved.

chronic sinusitis

Although Mr Davies sought medical treatment in respect of nasal problems in 1966, and as the medical records show, was examined in respect of those problems, there was no diagnosis of sinusitis at that time. A Repatriation Department, Treatment and Report Form (R1 p22) dated 6 July 1966 records that the sinuses are normal, with possible haziness in the left antrum due to a recent infection. The next reference to nasal problems is in a Repatriation Department Report of a Medical Practitioner on Incapacity of the Member (R1 p11) dated 5 September 1966. The report states:
Chronic lowgrade inflammation of the nose, in this case appears due to a deformity of nasal bones probably caused by trauma

Further on that report notes:

No evidence of nasal symptoms or injury on service, however x/m [examinee] claims symptoms commenced overseas and is a reliable historian

The first time that a diagnosis of sinusitis appears in the medical records, so far as I have been able to discover, is on 12 February 1969. On that day Mr Davies, who was then on operational service in Vietnam, underwent an "RTA medical", which I take to be a medical examination preparatory to returning to Australia from Vietnam. The relevant part of that entry (R2 p26) states:
Recurring sinusitis – deviated septum – aggravated # by dust in Nui Dat.
An entry relating to a medical attendance on 19 June 1969 refers to sneezing attacks and notes, "has had it since he was in SVN last Jan. Has got worse since return to Aust." (R2 p27). Sneezing and rhinitis are noted on two occasions in July and September 1969.
The service medical file includes a record of an outpatient attendance on 16 September 1969 when a prolonged history of allergic rhinitis said to have worsened in Singleton area was noted. The condition was said to be responding well to anti histamines and on examination no abnormality was detected. On 23 September 1969, the medical officer noted that the nasal septum was slightly deflected and the changes in the mucosa of the nose suggested vasomotor rhinitis (R2 p39).
A diagnosis of sinusitis was again made on 14 April 1970. The medical file records that vasomotor and allergic rhinitis were much improved. The medical officer noted (R2 p40):
At the present time he has mild right sided sinusitis associated with acute coryza and deflected septum. I recommend a nasal spray such as N.T.Z for temporary use.

A further diagnosis of sinusitis was made on 11 November 1970. The note reads (R2 p42):

There is moderate mucosal thickening in both antra due to sinusitis.

In evidence Mr Davies attributed his sinusitis to his service in Vietnam, he said: (trans p38)
I had difficulty because the dust at Nui Dat used to clog my nose and the only way that I could actually blow my nose was to actually pick out the congealed mess in my nose. That's what got that going and I went to the RAP couple of times for that.
That evidence is consistent with the record of the "RTA medical" prior to leaving Vietnam referred to in paragraph 15. Mr Davies explained that after his service in Vietnam he experienced the following symptoms (trans p39):
… that's where the sneezing and nose drips started. I mean for years I'd wake up and my nose would just - as soon as I got out of bed my nose just ran. I sneezed constantly. I learned to work through the tension under my eyes and the cotton wool in my head and that was particularly - that particular effect was particularly noticeable during the September through March period annual. But I was always sneezing and coughing and I think that's been very well recorded.
It appears from Dr Dumbrell's report of 25 November 1997 (T16 p88), that Mr Davies had his nose cauterised in 1970 in an RAF hospital in 1970. Dr Dumbrell wrote:
He has a watery, runny nose worse in the morning, and this problem has been present since his service in Vietnam. He had his nose cauterised in 1970 in an RAF hospital in the United Kingdom. He has been using a variety of puffers and inhalers over the years for his nasal problem.
On 25 August 1980 Mr Davies was referred by Dr Daniel at Duntroon for a specialist's opinion in respect of his allergic rhinitis and sinusitis. The referral (R2 p47) notes stated that the problem commenced in Vietnam in dust, "now regularly every year." The specialist wrote to Dr Daniel:
Thank you for referring Lt. Col. P. Davies with the allergic rhinitis which leads onto sinusitis. He is troubled by a post nasal mucus which has effected him all his life, and this is due to a milk allergy, and I have suggested this be avoided.
His hay fever like symptoms are worse about August, September, and on prick testing he reacted to Pine pollen alone which is present at this time, and no doubt worsens his symptoms here.
Finally drops in temperature are a further trigger for him and bring on sneezing, and this was more obvious after he returned from Vietnam some years ago for a number of years and perhaps again it has been worse since coming to Canberra. He must try and avoid any sudden drops in temperature which is not easy.
As set out in paragraph 13 of these reasons, the Full Court in Deledio, at p206 set out the steps the Tribunal must take in a matter such as this. The first step is as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to an 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.
The material before the Tribunal does point to a hypothesis of Mr Davies suffering recurring sinusitis during his operational service in Vietnam in 1969. He and the medical officers attributed the sinusitis to, or accepted it was aggravated by, the dust in Vietnam.
As to the second step there is a SoP for chronic sinusitis. For this matter the relevant SoP is Instrument No. 211 of 1995.
Step 3 from Deledio requires that the Tribunal determine whether the hypothesis is a reasonable one by considering whether the hypothesis raised by Mr Davies' evidence and the medical evidence fits the "template" to be found in the SoP. The hypothesis raised on behalf of Mr Davies must contain the factors which the RMA has determined must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic sinusitis with the circumstances of that service.

The applicant relied on factor (b) which reads:
(b)Suffering from mechanical obstruction of the sinus immediately before the clinical onset of chronic sinusitis;
The term 'mechanical obstruction of the sinus' is defined in paragraph 4 of the SoP. It states:
"mechanical obstruction of the sinus" means any obstruction which impairs the sinus drainage and includes tumours of the sinus, deviated nasal septum, foreign bodies in the nasal cavities including shrapnel or surgical appliances, dental roots, enlarged turbinates and bulla ethmoidals.
The Tribunal must determine whether the material raises a hypothesis of Mr Davies suffering from 'mechanical obstruction of the sinus immediately before the clinical onset of chronic sinusitis". In evidence Mr Davies explained how the dust affected him in Vietnam. He described how it "clogged his nose" and the only way he could blow his nose was to "actually pick out the congealed mess in my nose." "Mechanical obstruction" as defined in the SoP means "any obstruction which impairs the sinus drainage…". The Tribunal finds that the dust as described by Mr Davies was a "mechanical obstruction" which impaired sinus drainage.
The SoP requires that there be a mechanical obstruction immediately before the "clinical onset of chronic sinusitis." The term "clinical onset" is not defined in the SoP. However there is evidence that Mr Davies was diagnosed as having recurring sinusitis while serving in Vietnam, and that at that time dust in Nui Dat was identified by the medical officer as an aggravating factor. There is no evidence that he had been diagnosed as suffering sinusitis prior to his service in Vietnam.
The SoP defines chronic sinusitis as follows:
"chronic sinusitis" means inflammation of the paranasal sinuses lasting for at least three months, of infectious (bacterial or fungal) or non-infectious aetiology, characterised by persistence of sinus-related symptoms and persistent radiographic evidence of structural damage to the sinus, attracting ICD code 473.
Thus the SoP requires a history of inflammation of the paranasal sinuses for a period of "at least three months" and "persistent radiographic evidence of structural damage to the sinus". If I accept Mr Davies' evidence that his sinusitis was a recurring problem throughout his 12 months service in Vietnam. That evidence and the medical officer's record of recurring sinusitis in Vietnam satisfies the first of those requirements. There is no evidence of any X-rays being taken while Mr Davies was in Vietnam but the RTA medical examination in Vietnam (R2 p26) does mention "deviated septum" which is evidence of structural damage.
Finn J in Harris v Repatriation Commission [2000] FCA 803 indicated that precise compliance with the requirements of a SoP was required. The Full Court in Harris v Repatriation Commission [2000] FCA 1687 dismissed an appeal from that decision. The difficulties for Mr Davies are that the doctor who examined him in 1969, while Mr Davies was in Vietnam noted "recurring sinusitis" and "deviated septum", but did not record the precise duration of the symptoms of sinusitis and, so far as the evidence shows no X-rays of the sinus were performed in Vietnam. I consider it would be unduly technical to require that there be X-ray evidence of chronic sinusitis to constitute "clinical onset of chronic sinusitis", when the Army doctor diagnosed "recurrent sinusitis" in Vietnam without sending Mr Davies for X-ray. The condition was diagnosed in Vietnam as "recurring sinusitis" with a "deviated septum", and the role of a mechanical obstruction related to service was identified. The evidence does raise factor (b) in the SoP. Thus the hypothesis is reasonable.
Step 4 from Deledio requires that I consider whether I am satisfied beyond reasonable doubt that Mr Davies' incapacity does not arise from a war-caused disease. There is no material raising that suggestion. Thus I find that Mr Davies' chronic sinusitis is a war-caused disease.
hypertension
The hypothesis set out in the applicant's Statement of Facts and Contentions is that as a result of Mr Davies' operational service his alcohol intake increased dramatically until he was diagnosed with hypertension.   In his detailed statement dated 2 January 2000 (A1) Mr Davies said:
2.I did not consume alcohol prior to entering the Army, and commenced drinking alcohol (beer) in June 1960, with a significant increase over 1961.   During this year my beer consumption averaged one 750ml bottle each night; with extended all night drinking bouts on Sunday evenings.   All leave periods were characterised by alcohol abuse and all day drinking sessions.
3The pattern of regular alcohol abuse increased following my commission. I joined 1RAR at Holsworthy in January 1962 and lived in the Officers' Mess. Drinking was heavy and a nightly occurrence, with a rapid shift to include spirits as well as beer: Bundaberg Rum and Gordon's gin predominated. This male infantry community saw hard work and heavy drinking as a manly attribute, and this behaviour was encouraged and facilitated by the older, more senior officers who lived in the mess. ..
4From August 1963 to December 1964, I served as a platoon commander with 3RAR at Malacca in Malaya. The barrack living environment was marked by social isolation from the local population and an absence of female company. Unruly, boisterous behaviour and drunkenness was an accepted social norm when off duty.   An ongoing, undiagnosed, gastro-intestinal condition and a running conflict with my Platoon Sergeant increased my level of disquiet and stress. I sought relief in the excess consumption of beer and spirits.
5.On 20 February 1964 I moved to the Thai-Malay border area with my platoon for operational service.   Our role was to seek out any remaining terrorists who might be traversing or using this prohibited area of jungle. Patrolling and ambushing was the standard form of operations during this six weeks stint. My relationship with my Platoon Sergeant remained tense and confrontational. My only alcohol during this time was a daily issue of overproof rum.
7.[sic] Returning from operations on 5 April, I resumed my drinking pattern.   My gastro-intestinal problems increased and were further aggravated by nausea and rapid weight loss.   This was reported to my RMO, and I was subsequently referred to the Military Hospital at Terendak on 7 May for further medical examination.    My symptoms remained and I was admitted to hospital on 25 May for a barium meal and faeces testing.    These were inconclusive. …
8.My level of stress remained high during this period due to my continuing unsatisfactory general health situation. I attempted to offset my disquiet by drinking to excess. This did not work and I was again admitted to hospital on 11 November for a repeat barium meal. This time the result was positive and revealed a chronic duodenal ulcer. I was medically downgraded and returned to Australia in December 1994.   My platoon proceeded on operations to Borneo without me.
9.At my Medical Board on return to Australia, 7 Jan 65, I was found to have hypertension as well as a Duodenal Ulcer. Unfortunately available medical records fail to reveal any blood pressure readings taken during my service in Malaya or my periods of hospitalisation in 1964. . .
10.My next posting was to the Officer Training Unit at Scheyville, NSW. This was again a live-in environment in a demanding training environment preparing National Service officers for service in South Vietnam. My drinking pattern remained unchanged, with heavy alcohol consumption when not on duty or in the field. At this time I was fighting to achieve a medical upgrade and to show that my ulcer and hypertension were under control despite my continuing gastro-intestinal condition. I was able to achieve this outcome in January 67 with the help of a private opinion on my condition. I was married in February 1996 [sic should be 1966] and moved out of the barrack environment. When at home my alcohol consumption was modified to two or three glasses of beer or wine each evening. I left this posting in September 1997 [sic should be 1967] and moved to I RAR for service in South Vietnam.
11.I RAR had one purpose and that was to prepare for war. For married men more time was spent within the battalion area than with families for the period September 67 – March 68. The battalion's sub-units trained hard and played hard. Alcohol was a strong influence on these social occasions during our preparation for operations. I drank heavily at these in-house occasions and during our time at Canungra before embarkation.
12.The Battalion main body left for Vietnam on 28 March aboard HMAS Sydney. Again we worked hard and played hard. Alcohol was plentiful after each day's work and I continued to drink heavily, except when on duty.
13.By mid-April the Battalion was established at Nui Dat and was on operations. The pattern that followed for the remainder of our tour of duty involved a deployment to an area of operations to engage the enemy, usually from two to six weeks. My role was to manage the Battalion Command Post, often for extended periods, where I made decisions involving the safety and support of troops in contact with the enemy; clearances to fire artillery in support, call in air strikes, overfly contacts, and other urgent operational issues. These decisions were not insignificant. I was at Fire support base Coral during the Battalion's operations in May 1968.
14.Each operation was followed by a short break at Nui Dat to regroup and rest. These rest periods, in a relatively safe environment, saw safety valves blow and alcohol was the saviour. I was no exception and indulged heavily, drinking rum and coke to excess each evening in the mess, except when on duty. Following each operation, particularly for the first few days, I would have been hard put to respond responsibly following an evening's drinking, had we been required to defend ourselves.
15.On my return to Australia I was promoted to Major and was again involved in training personnel for service in South Vietnam at 3TB Singleton. My experiences of war and its destruction of life had occasioned me to commit myself to the preparation of troops for combat. It became my "raison detre" and, in hindsight, I began to work too hard to ensure this goal. My heavy drinking was modified, in deference to my family and my responsibilities, and I would only get drunk at mess and company functions. My normal consumption was two or three glasses of wine at home. Excess drinking remained my pattern when away from home on detachments or training courses.
16.It was during this posting, in 1970, that I was rudely reminded of my hypertension and its potential to stop my career in mid flight. I sought external advice from a private specialist and thus began my 20 year cat and mouse game to hide my hypertensive condition from my employer. I was able to do this with some success by taking medication prescribed by my family doctor; but was never able to achieve effective control. This situation caused me considerable stress and anguish during this period. The Army decided to act in 1989 and I was medically downgraded for Hypertension, but was also not able to control my BP.
17.Since 1970 I have continued to drink moderately at home, with occasional abuse during parties and when away with the troops on courses or training. Drunkenness was more controlled than during my Malaya – Vietnam period.
18.Hypertension was diagnosed on my return to Australia following operational service in Malaysia. (emphasis added)
Mr Davies adopted that statement in evidence. He said, as appears in his statement, that his hypertension was first diagnosed in January 1965 after his return from operational service in Malaya. He said at that time he did not know that the consumption of alcohol affected hypertension and therefore continued to drink to excess. Mr Davies said that at Nui Dat he and every other officer who was not on duty was imbibing alcohol. Had they had to go to their battle stations in the event of an attack they would have been "Below peak performance" (trans. p36). He explained at trans. p36:
[W]hen you've been out there and people have been trying to kill you and you've been making life and death decisions on sometimes a 15/16 hour roster in the CP then obviously bingo, when you go back it does blow a fuse for a while and then you cool down and get ready for the next one.
In accordance with step 1 of Deledio, no question of fact finding arises at this stage. The task for the Tribunal is to consider all the material before it and determine whether that material points to a hypothesis connecting Mr Davies' alcohol consumption and hypertension with the particular services rendered by him. The applicant's Statement of Facts and Contentions addressed the issue as follows:
HYPERTENSION
Mr. Davies has completed a statement signed and dated 2 January 2000. In this statement Mr. Davies has given a comprehensive history of his alcohol intake. It is evident from this statement that Mr. Davies has consumed more than the average intake of alcohol for the acceptance of Hypertension as stated in the Statement of Principle, Instrument No. 25 of 1999, Factor 5(b). Mr. Davies did consume alcohol prior to his eligible operational and Defence service. It is submitted that as a result of his operation service Mr. Davies alcohol intake increased dramatically up until he was diagnosed with hypertension. Mr Davies has stated that he was diagnosed with hypertension in 1965, but did not proceed with this condition within the medical services offered by the Defence Department, because of his fight to achieve medical upgrade, however he still did continue to consume alcohol at a high level up until 1970 when he sought external advice from a private specialist
Mr. Davies was also examined by Dr. Lester A. Walton on 6 April 2000 for the purposes of this application, and states;
"With reference to the service-relatedness of this man's alcohol abuse, if it is accepted that Mr. Davies had already adopted a pattern of alcohol abuse surrounding the Malaysian military experience then he would appear to meet Criteria 5(c) and (d) surrounding the subsequent Vietnam War experience. Alternatively, [if] it is determined that the alcohol abuse did not actually exist until the time of his Vietnam War experience then, nevertheless, it would seem that he would meet Criteria 5(a) and (b)."
It is submitted that Mr. Davies meets the criteria for acceptance of this condition of Hypertension on the basis of Factor 5(b) of Statement of Principles No. 25 of 1999. This condition should also be accepted because it developed during his period of operational service.
As to step two there is in force a SoP in respect of hypertension. Mr De Marchi sought to rely on factor (b) in Instrument No 25 of 1999. Mr De Marchi did not indicate how factor (b) in Instrument No. 25 of 1999 would be more favourable than factor (b) in Instrument No. 83 of 1995. I consider that it would not be more favourable, but I have referred to both SoPs.
The question whether hypertension should be accepted as war-caused must be considered in relation to the relevant SoP which sets out the circumstances in which it can be said that a reasonable hypothesis has been raised connecting hypertension with circumstances of service. The factors outlined in the SoP are the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of that service.
According to the medical evidence before the Tribunal and to his own evidence (see paragraphs 9 and 18 of A1), Mr Davies was diagnosed as suffering from hypertension in January 1965 following his first period of operational service in Malaya, and before his operational service in Vietnam. Mr Davies said in paragraph 5 of his statement that during operational service in Malaya, his only alcohol "was a daily issue of overproof rum." Mr De Marchi therefore raised a alternative hypotheses, namely that excessive alcohol consumption during operational service resulted in a worsening of hypertension. The relevant factors are set out in paragraphs 1(b) and (w) of Instrument No. 83 of 1995 which read as follows:
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; and
. . .
(w)suffering from psychoactive substance abuse involving daily consumption of alcohol that commenced before and continued at least until the clinical worsening of hypertension.

Factors (b) and (o) in Instrument No. 25 of 1999 are essentially similar except that they quantify the amount of alcohol required to be consumed per week.

There are two matters for determination. The Tribunal must first consider whether there is evidence raising the possibility of Mr Davies suffering from psychoactive substance abuse involving daily consumption of alcohol on operational service before and continuing until the accurate determination of hypertension. The second issue is whether there is evidence pointing to a clinical worsening of hypertension, and if so whether the material raises the fact of psychoactive substance abuse involving daily consumption of alcohol on operational service that commenced before and continued at least until the clinical worsening of hypertension.
The alcohol abuse or dependence must in either case be related to Mr Davies' operational service. That is provided in clauses 1 and 2 of Instrument No. 83 of 1985 and clause 4 of Instrument No. 25 of 1999. Although clause 2 of Instrument No. 83 of 1995 refers to "any service" clause 1 makes it clear that the SoP refers only to operational service. I discussed this issue in Re Carroll and Repatriation Commission [2000] AATA 180 at paragraphs 27 and 28. I said:
I have noticed that the chronic and acute sinusitis SoPs all require that the relevant factor from paragraph 1 be related to any service rendered by the person. There is material raising or pointing to Dr Carroll having suffered acute sinusitis during any service rendered by him, even though his service "aboard HMAS Anzac March/April 1965 and while working aboard naval ships at . . Naval Dockyard Williamstown soon after" was neither operational nor defence service. It is only operational or defence service which is relevant to Dr Carroll's claim to have chronic sinusitis and Meniere's disease accepted as war-caused or defence caused diseases. SoPs more commonly refer to a factor being related to "relevant" service. . . .
I have concluded that the different drafting style is not of any assistance to Dr Carroll. It does not allow me to take account of acute sinusitis suffered during the posting to HMAS Anzac. The Act does not provide for pension for all service related diseases. It only provides for pension in respect of war-caused disease (s 19(3)) or in respect of defence-caused diseases (s 70). The circumstances in which a disease is to be taken to be war-caused or defence-caused are set out in ss 9 and 70. Disease which does not fall within those legislative provisions can not be made pensionable simply by a somewhat imprecise use of language in a SoP. In fact s 196B(2) and (3) provide the legislative framework and authority for the SoPs. They may only apply in relation to specified forms of service which include operational and eligible and defence service. That limitation is recognised in paragraph 1 of the chronic and acute sinusitis SoPs. I am satisfied that the use of the term "any service" in paragraph 2 of each of the four sinusitis SoPs cannot widen the range of relevant service. Thus it is only acute sinusitis during operational, eligible or defence service which is relevant to this application for review.

The same reasoning applies to the use of the term "any service" in clause 2 of Instrument No. 83 of 1995.

The first record of Mr Davies being diagnosed as having raised blood pressure is found in a Repatriation Department, Treatment and Report Form dated 9 June 1966 which notes "Duodenal ulcer diagnosed 1964 – also hypertension." The specialist report on that form is dated 29 June 1966. It states at no. 2 "[W]as found to have raised B.P. about Nov 64". [R1 p20]An Army Medical Examination Record dated 7 January 1965 notes hypertension as "high" [R2 p2].
Dr Dumbrell in his report of 25 November 1997 set out the following medical history:
He was told that he had elevated blood pressure in the early 60s and started on treatment privately in 1963 and stopped in 1967. At that stage he was told that he had labile hypertension.
If Mr Davies suffered from hypertension in 1963, then it could not be found to be war-caused as his operational service did not begin until 20 February 1964. However the Army contemporaneous medical records (R1 p20 and R2 p2) do point to the first raised blood pressure readings and diagnosis of hypertension being in November 1964 and January 1965 rather than in 1963 as Mr Davies apparently told Dr Dumbrell when he saw him in 1997.
As Mr Davies served in the Australian Army from 8 February 1958 to 17 February 1992, the Tribunal was provided with extensive service medical records (R1 and R2). Although Mr Davies said he sought private medical treatment for his hypertension in an attempt to avoid being medically downgraded for that reason, no report or clinical notes from any private medical practitioners seen in the 1960's, (unless Dr Farrell (R2 pp35-37) meets that description) were received in evidence. Thus the Tribunal's analysis of the medical records as to hypertension is confined to the service medical records.
The service medical records do point to Mr Davies first being diagnosed with hypertension in November 1964. That is about seven months after the conclusion of his first short period of operational service in Malaya. Only the period from 20 February to 5 April 1964 is operational service, and therefore relevant to this application, although Mr Davies did not return to Australia until 19 December 1964. In fact Mr Davies seems to have spent most of the time from 25 May 1964 until 15 August 1965 in a Military hospital in Malaya and then to have had further medical treatment immediately on his return to Australia.
Although the evidence points to the accurate determination of hypertension occurring in November 1964 (R1 p20) or January 1965 (R2 p2) there is conflicting medical evidence at R1 pp10–12. In a Report upon Incapacity, Dr Hyde on 5 September 1966 wrote:
1) Marked elevation of blood pressure in response to stress. This tendency is influenced mainly by hereditary factors – stress itself is not considered to be a cause, though it reveals tendency to hypertension. This condition is considered to be a precursor of true hypertensive disease.
1)NO : There is no evidence of this [ie hypertension] during actual service period.
(22/7/65 first high reading noted)
Dr Hyde may have not been informed as to blood pressure readings taken in Malaya or in January and March 1965 (R2 pp2 and 36). The medical records before the Tribunal show a number of readings which were extracted from the records by Ms McCulloch and tendered in evidence (R10). There are no readings available in 1964 although, as Mr Davies spent considerable time in Terendale Military Hospital, blood pressure readings would almost certainly have been taken and recorded. Those taken in 1965 are as follows:
4 January 1965         156/96          R2 p2
March 1965     180/120         ) taken at Concord Hospital 150/96    ) referred to by Dr Farrell who 160/83          ) reported that a diagnosis of             labile hypertension was made         at that time (See R2 p36).
12 April 1965   156/96 R2 p33
13 April 1965   180/120         R2 p34
22 July 1965    160/105         R2 p32
On 26 September 1966 Dr Farrell examined Mr Davies and wrote a report dated 7 November 1966 (R2 pp35-37). He wrote that the history he had obtained was that a diagnosis of hypertension had been made in January 1965. He took two blood pressure readings of 160/110 and 150/100. After referring to the records of Concord Hospital as to blood pressure readings in March 1965, Dr Farrell concluded (R2 pp36 and 37):
With respect to his hypertension, it is also obvious that this is a labile hypertension. There is no evidence from his intravenous pyelogram, from his cardiogram, from his chest x-ray, from his blood urea or microurine that there is any permanent hypertensive state. Undoubtedly this labile hypertension is associated with the emotional status of the patient at the time his blood pressure is taken.
Under these circumstances I can therefore say medically that Captain Davies is in excellent health. His duodenal ulcer is completely healed, there is no organic disease of his colon and I am sure any slightly elevated blood pressure readings that have been obtained are very obviously and definitely related merely to emotional tension at that time. There is no evidence of true persisting essential hypertension.
The evidence shows some conflict between medical officers as to whether or not a diagnosis of hypertension was appropriate for Mr Davies' labile hypertension in 1965. In those circumstances it is helpful to refer to the definitions in the relevant SoP. In Instrument No. 83 of 1995 "hypertension" is defined as follows:
"hypertension" means:
(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)where treatment for hypertension is being administered
attracting an ICD Code in the range 401 to 405.

In Instrument No. 25 of 1999 paragraphs (a) and (b) of the definition are essentially the same. The definition specifically excludes certain temporary elevations in blood pressure, but it does not exclude temporary elevations in blood pressure due to emotional factors.

There is material indicating that a diagnosis of hypertension was made in November 1964 and again in January 1965. All the recorded readings in 1965 have a systolic reading greater than 140 and all except one have a diastolic reading greater than 90. The number of readings satisfying the definition does indicate that Mr Davies had hypertension from 1964 or 1965 when it was diagnosed, as he himself stated in his statement (A1). As to the question whether labile hypertension constitutes "hypertension", Dr Morgan in a report dated 20 December 1999 wrote (R11):
Hypertension. On the figures in your note, the veteran appears to have had hypertension from 1965 by modern understanding. (The concept of labile hypertension would not currently be widely accepted; one has hypertension or one doesn't).

Dr Rossiter also said that labile hypertension is within the definition of hypertension in the SoP. I accept that evidence and find that Mr Davies has been suffering from hypertension as defined since January 1965.

The only relevant period of service prior to that date was the operational service in Malaya from 20 February to 5 April 1964. Mr Ducker, a military historian, in his report of 2 May 2000 (R9) confirmed Mr Davies' description of that service. Mr Ducker wrote that the border operations were arduous but not eventful. It was Mr Davies' evidence (paragraph 5 of A1) that during that period the only alcohol was a daily issue of overproof rum. Mr Ducker confirmed that and explained (R 9 para 25a):
This rum was usually carried in a water bottle by the PI Sgt and issued at dusk, measuring a water bottle top for each man that wanted it.
There is no evidence raising or pointing to Mr Davies suffering from psychoactive substance abuse involving daily consumption of alcohol related to operational service before and continuing at least until the accurate determination of hypertension in March 1965. The evidence is that the only alcohol available during operational service was an issue of a water bottle top of rum per day and that the nature of that service was "arduous but not eventful".
It is therefore appropriate to consider the alternative hypothesis as to clinical worsening of hypertension which relied on factor (w):
suffering from psychoactive substance abuse involving daily consumption of alcohol that commenced before and continued at least until the clinical worsening of hypertension.

Clause 3 of the SoP applies to factor (w). It provides:

3. The factors set out in paragraphs 1(v) to 1(x) apply only where:
(a)the person's hypertension is accurately determined prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the hypertension and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.

The SoP in clause 4 defines "clinical worsening of hypertension" as follows:

"clinical worsening of hypertension" means an accurate determination of a persisting increase in blood pressure where:
(a)the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)where the treatment for hypertension is changed to deal with the clinical worsening;

The definition in Instrument No. 25 of 1999 is slightly different but not more favourable to Mr Davies. It is as follows:

"clinical worsening of hypertension"means clinically significant worsening of hypertension, which for example requires a change in medication to deal with the clinical worsening.

The blood pressure readings in the service medical documents (as set out in the list prepared for Dr Morgan part of R10 or R11) do not show any "persisting increase" or "clinically significant worsening" in blood pressure at any stage. Ms McCulloch called Dr Rossiter who had prepared a report dated 19 October 2000 (R13). After reading the whole of the Central Medical Records file for Mr Davies, Dr Rossiter wrote on the issue of whether or not there was material pointing to a clinical worsening of hypertension during relevant service:
"Specialist physician/cardiologist reports are noted dated 7/11/66, 2/5/84, 8/1/85, 16/7/85, 12/8/88 and 26/4/89 which confirm a diagnosis of labile hypertension and specifically advise that no medication was indicated for treatment of blood pressure.
On 13/8/87 a blood pressure of 130/90 was recorded at a Periodic Medical Board indicating that blood pressure was not persistently elevated.
The veteran was not on any treatment for raised blood pressure at this time.
On 6/9/89 a cardiologist prescribed medication for lowering blood pressure but on review (by the same cardiologist) on 12/3/91 (after the veteran had ceased his medication because of side effects) stated that the blood pressure was satisfactory without a requirement for medication.
At a Final (Discharge) Medical Board on 7/2/92 the medical examiner noted a blood pressure of 150/100 with no medication being taken (due to side effects previously suffered).
The examiner did not advise further medication or further specialist review.
When this blood pressure reading is compared with those recorded on the service documents in 1965 it is obvious that there is no evidence of clinically significant worsening of hypertension during the veteran's 34 year service career.
More specifically in consideration of the three eligible periods of service:
1.20/2/64 to 5/4/64 (6 weeks operational service in Malay) – no blood pressure readings recorded.
2.27/3/68 to 28/2/69 (11 months operational service in South Vietnam) – 160/110 settling to 150/90 after 15 minutes rest on 2/1/67 and 160/90 on 23/4/72.
3.7/12/72 to 17/2/92 (commencement of eligible service) – 170/110 settling to 160/110 with rest on 13/10/72 and 150/100 on 7/2/92 at discharge medical board."
Dr Rossiter in evidence confirmed that in his opinion the records from 1964 to 1992 show no clinical worsening of blood pressure during the service period. That seems also to have been the concluded view of the Army medical authorities during Mr Davies' service.
On 11 June 1985 Major Crompton asked a medical specialist, Lt. Col. Wettenhall to assess Mr Davies. His referring note (R2 p22) stated:
Can you please assess this man who throughout his army career has had labile blood pressure recordings. The DMS-A says he should be P3 CZE which disagrees with my view of P2 FE.

Lt. Co.. Wettenhall replied (R2 p22):

15 Jul 85 Thank you. DMS 3MD has mentioned this case to me.
Having been previously made aware of the problem I have taken the opportunity to check Prof. Ken McLean's notes and to discuss the problem with him.
Prof. McLean is firm in his opinion that there is NO evidence of established hypertension or end-organ damage. The patient has carefully recorded his own BP for the last 4 weeks, and has produced results which were non-tensive except on a few occasions. His machine calibration however is a question-mark when interpreting these readings. More importantly a series of readings in 1984 at RAP OCS gave similar results.
General physical examination is unremarkable.
BP 150/95 Ü 140/95 with rest. He does not appear to relax well.
CONCLUSION
I believe this to be a problem of labile hypertension, and am of the opinion that there is no disability at present. In the future he may develop sustained hypertension but I do not recommend medical downgrading for what might happen at some unknown time from hence. P2 FE is the correct [rating?]

On 1 August 1985 Major Crompton at a Medical Board examination wrote (R2 p20):
Has long history of labile H/T. However charting by RAP staff & his own electronic sphygmomanometer shows that over 90% of recordings are within normal limits. Gets comfortable A pass in PT with 5km runs in 26 mins. To be seen by LT COL Wettenhall who says he is P2 FE.
Mr Davies said in his evidence that he was on treatment for hypertension. He said at trans. p44:
It was never under control despite taking a number of medications and when the Army finally picked it up I had great difficulty getting onto any medication and that has continued and I'm on new medication now.
There was no evidence as to the nature of the "great number of medications" or who had prescribed them. The Tribunal did receive clinical notes from Dr Davidson (R4), but they only start from December 1992 which is after the last period of eligible service which concluded on 17 February 1992. Mr Davies at paragraph 17 of his statement said that in 1989 he was medically downgraded for hypertension. There is no evidence that even then there was any "clinical worsening" of his hypertension.
There is no material raising or pointing to a clinical worsening of hypertension in 1968 or 1969, ie during or immediately after Mr Davies' return from operational service in Vietnam. Nor is there material pointing to a clinical worsening of hypertension during eligible service. Even if there were a clinical worsening in 1989 there is no evidence pointing to Mr Davies suffering from psychoactive substance abuse involving daily consumption of alcohol continuing until that time. His statement (A1), at paragraphs 15 and 17, contradicts any such suggestion.
The decision refusing to accept hypertension as a war-caused disease will be affirmed.
cervical spondylosis and lumbar spondylosis
The hypothesis relied on in respect of cervical spondylosis was stated in the applicant's statement of facts and contentions to be related to "carrying heavy packs and equipment when he injured his back." That does not seem to raise any hypothesis at all relating to cervical spondylosis.
Nor did Mr Davies in his evidence describe any incident or occurrence which would seem to have any causative relationship to cervical spondylosis. He described having to jump out of helicopters while heavily loaded in Vietnam (trans. pp39 and 40), but he said that it was only on a couple of occasions that he had to "put the pack on and go out into the field." Mr De Marchi asked Mr Davies about his jumps out of the helicopter on those occasions. Mr Davies said the height from which he jumped was probably about six feet (trans. p40):
Did you land on your legs?---Landed on my legs and to ground as quickly as possible, so you were really rolling as you hit the ground.
And you propelled forward and you said your pack sort of came up over your head?---Yes, pack would ride up over your head. Yes.
Now, do you recall any sensation in your neck and spine at a particular time?---Look, I can't recall. I've got to be – I cannot recall any significant trauma. There was – you might have strained your shoulders and bumped your head but - - -
Okay – I will just ask you to leave the medical terminology to the doctors?
When the Tribunal pointed out that Mr De Marchi had cut off his client's answer, Mr Davies' examination in chief continued:
Now, on those two occasions that you did all that did you feel any sensations in terms of your neck or thoracic or lumbar spine?---Other than a bit of a thump on the head when the pack actually came over my head, I was much more intent on what was going on and getting up so I can't say specifically that I felt anything other than that.
There was medical evidence which did attribute both cervical spondylosis and lumbar spondylosis to Mr Davies' service. Mr Hugh Hadley, in his medical report, dated 8 March 2000 wrote (A3):
Due to serving with the Australian Army in training, in Malaysia and in Vietnam when he was carrying heavy loads well in excess of 35 kilograms day after day he is suffering from cervical and thoracolumbar spondylosis. His frequently carrying heavy loads well in excess of 35 kilograms has contributed to him developing spondylosis in his cervical and thoracic spine due to repeated trauma to his cervical and thoracolumbar spine.
Dr Dooley in a medical report dated 6 December 1999 (R5), wrote that Mr Davies suffered from low-grade cervical spondylosis, which he thought was probably service-related:
This is probably service-related, in that he has had constant complaints of neck pain and, more recently headaches, for a very long period. He is round shouldered, and probably suffers from disc degeneration in the thoracic spine, and this would have placed an increased strain on his cervical spine, making him more prone to cervical spondylosis. I consider therefore that his cervical spondylosis is service-related.

Mr Dooley wrote that Mr Davies did not suffer from lumbar spondylosis of any degree (R6).

In a later medical report, dated 21 December 1999 (R6), Mr Dooley reviewed his opinion after examination of the relevant SoP. He could not find a factor in the SoP linking the cervical spondylosis with service. Mr Dooley wrote (R6):
This man does suffer from poor posture, with a thoracic kyphosis, and this in turn has caused a cervical lordosis and increased stress on his cervical spine. Thus, there has been a natural development of cervical spondylosis related to his thoracic kyphosis. In summary then, I believe this not to be service-related.
In my initial opinion, I had felt that the carrying of packs, lifting and falling over, etc. in itself may have caused the cervical spondylosis, but this is unlikely and, even if so, has been a minor contributing factor to his present cervical spine state.
In respect of cervical spondylosis the relevant SoP would be Instrument No. 161 of 1996 which was in operation at the time of the primary determination of 1 July 1997. It contains no factor relating to the carrying of heavy loads such as packs. Nor is such a factor contained in the SoP to which Mr De Marchi referred in his statement of facts and contentions, Instrument 31 of 1999. The hypotheses raised in respect of cervical spondylosis, namely the carrying of heavy packs and equipment is not consistent with the template found in either SoP and thus is not reasonable.

The factor on which Mr De Marchi endeavoured to rely was that relating to trauma to the cervical spine. Factor (g) in Instrument No. 161 of 1996 provides:
(g)suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or;
. . .

Factor (h) in the 1999 SoP is in exactly the same terms.

The 1996 SoP contains a definition of "trauma to the cervical spine" which reads as follows:
"trauma to the cervical spine" means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;
There was no evidence or material before the Tribunal raising or pointing to the existence of the factor of "trauma to the cervical spine", during service. In fact Mr Davies said quite clearly at trans. p89: "I've never had any single trauma." Thus the hypothesis relied on by Mr De Marchi as to cervical spondylosis is not reasonable and the claim for cervical spondylosis must fail. The slight difference in the definition of "trauma to the cervical spine" in the 1999 SoP would not make any difference to that result. The decision under review as to cervical spondylosis will be affirmed.
Mr Davies' clear statement that he never suffered any single trauma applied to both trauma of the cervical and trauma of the lumbar spine. The relevant SoP, in respect of operational service, for lumbar spondylosis is Instrument No. 166 of 1996. It does not have any factors relating to the carrying of heavy loads. Nor does the later SoP, Instrument No. 27 of 1999 contain such a factor. There is a factor related to trauma. Factor (g) in Instrument No. 165 of 1966 provides:
(g) suffering from a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.

Factor (h) in the 1999 SoP is the same except for the deletion of the word "from". The definition of "trauma to the lumbar spine" in SoP No. 166 of 1996 reads as follows:

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

Mr Davies referred only on the carrying of heavy equipment as a factor leading to his lumbar spondylosis. He stated that he had not experienced a single trauma to the spine [trans p89]. When Ms McCulloch read him the definition in the lumbar spondylosis SoP, he replied "I did say at no stage have I had trauma of that nature." (trans. p92). The hypothesis raised on the material before the Tribunal relates only to the carrying of heavy packs and equipment. It does not fit within the "template" of the SoP and is not reasonable. Nor would it fit within the template in Instrument No. 27 of 1999. Mr Davies' claim for lumbar spondylosis must fail.
Assessment
As to assessment the parties informed the Tribunal that they agreed on the following impairment points:
(1)      Hearing Loss   Table 7.1  8
(2)      Tinnitus  Table 7.11  10
(3)      Allergic rhinitis  Table 7.2.2  5
(4)      Gastro-oesophageal reflux      Table 6.1.4  10
(5)      Tinea  Table 11.1  5
The parties further agreed that even if chronic sinusitis were accepted as a war-caused disease, it would not increase the rating of 5 points on Table 7.2.2.
Thus the only accepted conditions as to which there is not agreement as to the appropriate rating are post traumatic stress disorder ("PTSD"), where the applicant claims the rating should be 27 impairment points under Chapter IV and the respondent submits it should be 18, and irritable bowel syndrome where the applicant submits the rating should be 10 impairment points on Table 6.1.8 rather than 5 as conceded by the respondent. The applicant also claims 5 impairment points for haemorrhoids on Table 6.1.9.
ptsd
Psychiatric conditions are to be rated on the tables in Chapter IV. First an impairment rating must be determined on each of Tables 4.1 to 4.8. Evidence on the issue of assessment was provided by Mr Davies and by two psychiatrists. Dr Cole who had prepared a report (A2), gave evidence. The respondent tendered two reports by Dr Walton (R7 and R8) but he was not called.
Table 4.1 assesses Subjective Distress. Dr Cole assessed Mr Davies at 10 on this Table noting "Is constantly on the alert. Readily becomes agitated. Is unable to distract himself." Dr Walton chose a rating of 6. He wrote "I believe that this veteran is properly described as exhibiting frequent symptoms causing moderate subjective distress and at times he is unable to distract himself from that distress, that is, a rating of 6."
Mr Davies said that he had very frequent symptoms causing him moderate distress. He said that work or occupation helps him deal with the problems but when he had a period of unemployment he lived with the problem 24 hours a day, virtually every day. He said he drives himself out of bed in the morning to be at work where he knows he can occupy himself.
I find that a rating of 10 on Table 4.1 is appropriate.
The next Table is 4.2 which relates to "Manifest Distress". Dr Cole and Dr Walton both gave Mr Davies a rating of 6. I find that is an appropriate rating. I rate Mr Davies at 6 on Table 4.2.
Table 4.3 looks at "Functional Effects". Dr Cole rated Mr Davies at nil. He himself agreed with that rating. Dr Walton gave a rating of 1 which is appropriate when there is minor interference with most aspects of living, but perhaps Dr Walton had not looked at the explanation of the sort of factors which are to be taken into account when giving a rating on Table 4.3. Mr Davies agreed that he has no difficulty with any of the matters set out in the explanation to Table 4.3. A rating of nil is therefore appropriate.
Table 4.4 deals with "Occupation". Once again Dr Walton would have given a rating of 1, but Dr Cole and Mr Davies both considered a rating of nil was appropriate. Mr Davies has been able to work in spite of his PTSD and he gave no evidence as to having to take time off work or having a loss of productivity at work. He agreed that his PTSD causes minimal or no interference with work or occupation. Thus the appropriate rating must be nil.
Table 5.5 deals with the "Domestic Situation". Dr Cole gave a rating of 3. He noted "Frequently comes into conflict with his wife, but has become aware of it and is trying to control his irritability." Dr Walton gave a rating of 1. He wrote "The veteran certainly reports no major impact upon family life because of his psychological problems nor alcohol intake but there is a history of some irritability especially between he and his spouse." Mr Davies said, at trans. p52, that he does cause his wife upset, but it is not frequent. He said "the word frequent is a difficult word for me. I'd like to think it was less, but I'll often contradict or say something out of turn. That would be the sort of discord so probably about two, I'd say." He then gave an account of his relations with his daughters and there seemed to be some discord in his interaction with both his daughters. Thus he suggested a rating of 2 which applies when there is frequent discord with family members. I consider that to be the appropriate rating on Table 4.5.
Table 4.6 looks at "Social Interaction". Dr Cole gave a rating of 5 noting "Does not socialise and if people drop by he regards it as an inconvenience. He has very few friends. He has not been to his best friend's house for two or three years. Does not confide in what friends he has left. He is able to socialise in groups, but then disappears." Dr Walton gave a rating of 2 with the comment "It is clear that this veteran does remain socially active but his social activities do appear to be somewhat limited and I would rate the social impairment at 2." Mr Davies said that he had no difficulty mixing in a social situation. He said "I am a most gregarious character. I can move into a crowd of people and I normally help to move it around. I was out on Saturday night and had a wonderful evening and felt as flat as anything the next day and it wasn't because I wasn't having fun, it wasn't because I wasn't part of it on a more permanent basis. . . I've got difficulty with the interpersonal relationships rather than the group relationships. I occupy a privileged position where people seek me out etcetera but I don't discuss my personal issues with anyone. I've only started to do that recently with my wife, so that it is that one-to-one relationship that I have greatest difficulty with." I consider that the appropriate rating there is, as Dr Walton said, a rating of 2, for minor reduction in social interaction.
Table 4.7 looks at "Leisure Activities". Dr Cole gave a rating of 3 noting "Work has been his life and his hobby. He works in the garden as he enjoys physical activities, but has no interest in plants. Has recently taken up golf and plays with his wife. Has no real hobbies, but spends a lot of time in the Veterans' community." Dr Walton gave a rating of nil noting, "The veteran does participate in leisure activities, the principal restriction being in relation to the long hours of work he put in previously rather than any obvious impact directly associated with psychiatric or alcohol problems. Thus I would rate this veteran as exhibiting minimal or no effect on leisure activities, that is, a rating of nil." Mr Davies in evidence said that the way he drives himself at work to show that he has not lost any of his ability gets in the way of leisure activities. He said he and his wife share a bit of golf and walk and go to the movies. He also explained that they have taken up travel and went on a trip to Japan last year. He said that they have one couple of friends who they probably see about once a fortnight now. He said he had joined a gym but had not enjoyed that, and he and his wife do go to the opera. He said he has never been a person who has played sport such as cricket or basketball other than in a social competition in the service. I find that Mr Davies is appropriately rated at nil on Table 4.7.
Table 4.8 looks at "Current Therapy". Mr Davies does see a psychologist on a regular basis and thus Dr Cole rated him at 3. Dr Walton agreed with that rating and I accept that as appropriate.
Having determined an impairment rating from each of Tables 4.1 to 4.8, step two in calculating an impairment rating for a psychiatric condition requires me to find the highest three impairment ratings from Tables 4.3 to 4.8. They are:
Table 4.8  3
Table 4.5  2
Table 4.6  2

Step 3 requires that I add together the impairment rating from Table 4.1 of 10, the rating from Table 4.2, which in this case is 6, and the three impairment ratings obtained at step two which total 7. That makes a total of 23. In accordance with the directions at pages 90 and 91 of the Guide to the assessment of rates of veterans' pensions ("GARP") that gives Mr Davies a rating of 23 for PTSD.
irritable bowel syndrome

The other condition on which the parties did not agree is irritable bowel syndrome. That condition must be assessed on Table 6.1.8. The discrepancy between the parties is as to whether the rating should be 5 or 10. The Table provides a description of those two ratings. On the description of his symptoms given by Mr Davies I find that 10 is a more appropriate rating than 5.
The other discrepancy between the parties is as to whether there should also be a rating for haemorrhoids on Table 6.1.9. Having considered the ratings for nil and 5 I find that a rating of nil is appropriate.
combined impairment rating
The ratings to be taken into account are therefore:
PTSD  23
Irritable Bowel Syndrome  10
Gastro-oesophageal reflux  10
Tinnitus  10
Sensori-neural hearing loss                  8
Rhinitis  5
Tinea  5

Those impairments give a combined impairment value on Table 18 of 53 which must be rounded up to 55 impairment points. Using the lifestyle ratings in the shaded area, that gives an entitlement to pension at 90% of the general rate.

The determination of the Repatriation Commission will be varied to provide:
(i)that chronic sinusitis is a war-caused condition; and
(ii)that pension is payable at 90% of the general rate from 11 June 1996.

In all other respects the decision under review will be affirmed.

I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs J. Dwyer, Senior Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  23 October 2000
Date of Decision  30 March 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Ms J McCulloch