Dillon and Repatriation Commission

[2000] AATA 986

DECISION AND REASONS FOR DECISION [2000] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W1999/123

VETERANS' APPEALS   DIVISION     )          
           Re      BRIAN DILLON      
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President T E Barnett Brigadier R D F Lloyd, Member Dr P A Staer, Member            

Date13 November 2000 

PlacePerth

Decision      In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  ..........(sgd T E Barnett).........
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant rendered operational service – applicant suffering from conditions of gastro-oesophageal reflux disease and hiatus hernia – whether those conditions are war-caused.
Veterans' Entitlements Act 1986 ss 9, 120, 120A, 196B
Statement of Principles concerning Gastro-Oesophageal Reflux Disease (Instrument No 121 of 1995)
Determination of Statement of Principles concerning Hiatus Hernia (Instrument No 42 of 1999)
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Re Ogston and Repatriation Commission (1999) 86 FCR 578
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

13 November 2000 Deputy President T E Barnett Brigadier R D F Lloyd Dr P A Staer               

1. This is an application by Brian Dillon ("the applicant") for a review of a decision made by the Veterans' Appeals Tribunal ("VRB"), on 30 March 1999, to affirm the decision of a delegate of the Repatriation Commission ("the respondent") made on 25 February 1998, that the applicant's condition of Gastro-Oesophageal Reflux Disease ("GORD") is not a war-caused injury or war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act").

2. At the hearing the applicant was represented by Mr B Cooper, veterans' advocate, and the respondent was represented by Mr C Ponnuthurai, an advocate for the department. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following documents tendered at hearing:

• Letter from the applicant, received by facsimile on 3 August 1999, enclosing the endoscopy report of Dr Kilerby, dated 23 December 1997 – Exhibit A1;

• Medical report of Dr M Glaser, dated 23 February 2000 – Exhibit A2;

• Letter from Mr B Cooper to Dr M Glaser, dated 16 June 1999 – Exhibit A3(a);

• Medical report of Dr M Glaser, dated 11 June 1999 – Exhibit A3(b).

The applicant also gave oral evidence.

1. At the conclusion of the hearing, the Tribunal afforded the respondent the opportunity to file background documents submitted to the Repatriation Medical Authority ("RMA") in its consideration of the medical condition hiatus hernia.  This document entitled "Hiatus Hernia Discussion Paper", and dated 29 March 1999, was duly filed by the respondent on 18 May 2000 and was taken into evidence as Exhibit R1.  The applicant was given the opportunity to file submissions on this document, but declined to do so.
   The Background Facts

2. The background facts, as found by the Tribunal, and that are not in dispute between the parties, are as follows.

3. The applicant was born on 20 February 1944 and joined the Australian Defence Force on 24 February 1961. He rendered "operational service", also being "eligible war service", within the meaning of the Act in Vietnam from 22 May 1966 to 11 December 1966. He was discharged from service in 1967.

4. On the applicant's "Record of Medical Examination of a Recruit" (T6, p16), completed upon his enlistment in the Australian Regular Army in 1961, no abnormalities with respect to stomach ulcers, indigestion or reflux were noted. 

5. On discharge from the Army in 1967, the applicant again denied any recurrent problems with respect to indigestion, ulcer of stomach or duodenum (T6, p20), and no mention is made in his service records of his being treated for indigestion or reflux problems (T6).

6. On 21 August 1979, the applicant underwent medical examination by a Repatriation Department medical officer and no abnormality was detected with respect to his abdomen and no mention made of the applicant suffering reflux symptoms (T7, p29).  During the course of that examination the applicant stated that he smoked 20 cigarettes per day and was a moderate drinker (T7, p28).

7. On 29 June 1984 the applicant underwent a further medical examination by a medical officer of the Department of Veteran' Affairs.  In the report from that examination, no mention is made of the applicant suffering from stomach upsets or reflux symptoms and examination of his abdomen again detected no abnormality (T7, p33).  The applicant stated that he smoked 20-25 cigarettes a day and drank 2 stubbies of beer a day (T7, p32).

8. On 8 July 1986 the applicant was admitted to Derby Regional Hospital for investigation of his reflux symptoms.  He underwent endoscopy and was found to be suffering from hiatus hernia with severe oesophagitis and he was commenced on Tagamet (T7, p61).

9. On 17 October 1986 the applicant underwent a further medical examination by a medical officer of the Department of Veterans' Affairs.  In that examination he was noted to be overweight, with a protruding abdomen, and to have a history of hiatus hernia and peptic ulcers (T7, pp 38, 39).  He was also noted to smoke 20-25 cigarettes a day, having commenced smoking at 14 years of age, and to drink 6 stubbies of beer a week.

10. On 23 October 1997, the applicant completed a "Claim of Disability and Medical Treatment" form (T7, p41) in which he claimed his "gastro-reflux" as a war-caused disease.  In that form the applicant stated that he first became aware of this disability in 1970, and a section completed by the applicant's general practitioner, Dr J Crawford, stated that the date of onset for this condition was before 1984  (T7, p46).  In that form the applicant also stated that he smoked cigarettes and consumed alcohol (T7, p46). 

11. On 25 February 1998, a delegate of the respondent determined that the applicant's GORD was not war-caused.

12. On 23 November 1998, the applicant's general practitioner, Dr J Crawford, wrote that the applicant suffered from Barrett's oesophagus which was being treated with Losec and required yearly endoscopies from a gastroenterologist.  He also opined that the applicant's symptoms could well date back to his time in Vietnam (T7, p65).

13. On 30 March 1999, the VRB affirmed the decision of the delegate dated 25 February 1998.

14. On 11 June 1999, Dr M Glaser, gastroenterologist, confirmed that he had been treating the applicant for gastro-oesophageal reflux since 1996 (Exhibit A3(b)). He stated that the applicant reported his symptoms to be present from the early 1970's and that, upon gastroscopy, the applicant was noted to be suffering from Barrett's oesophagus which indicated that his reflux may have been very longstanding and severe.  He stated:

    "…It is quite likely that severe gastroesophageal reflux considerable pre-dated the diagnosis and may well have been present as early as the 1950s or 1960s although there is no way that this can be proved at this stage.
    As to the question of whether he has a hiatus hernia – I have not seen a hiatus hernia on two examinations.  It apparently has been documented previously.  A sliding hiatus hernia is usually small and does not cause symptoms.  It is named a sliding hiatus hernia since it may slide in or out of the hiatus and therefore not be present on some days while noticeable on others.  A small sliding hiatus hernia in itself does not cause symptoms and its presence or absence is not really relevant to the main problem which is severe gastroesophageal reflux.  Gastro-oesophageal reflux is believed to occur because of intermittent inappropriate relaxation of the lower oesophageal sphincter.  Reflux is often more severe when a hiatus hernia is present but the primary defect is inappropriate relaxation of the lower oesophageal sphincter.
    …". (Exhibit A3(b))

1. On 23 February 2000, the applicant underwent a further gastroscopy, performed by Dr Glaser, which confirmed the presence of Barrett's oesophagus (Exhibit A2).  The report of that gastroscopy stated that no hiatus hernia was present on examination.
   The Applicant's Evidence

2. The applicant stated in evidence that he was a driver whilst in the Army in Vietnam.  He served in the Artillery Regiment based in Nui Dat (the Australian Task Force base) and his usual duties included collecting general supplies, laundry and sand. 

3. He recounted one particular incident during the battle of Long Tan when he and others were required to carry ammunition boxes to the gun sites in Nui Dat.  Because of the intensity of the battle the applicant stated that he was required to carry the ammunition boxes, weighing approximately 100-120 pounds, single-handedly a distance of 30 to 40 yards. This event lasted for approximately an hour in total and was the only incident involving heavy lifting that he could recall during his time in Vietnam.

4. The applicant stated that he first began to suffer reflux symptoms during his service in Vietnam.  He described his symptoms as follows;

   "… sort of whoosey in the stomach and I would sort of bring food up into my oesophagus."   (Transcript, pg8)

The applicant stated that, on the advice of the RAP Sergeant, he took Mylanta to help relieve his symptoms.  The Mylanta was supplied to him in liquid form by the RAP Sergeant, who was a friend of his, and he took 3-4 sips a day when he returned to his tent between driving jobs.  He stated that the Mylanta was effective in settling his reflux symptoms and he continued to take it for the remainder of his time in Vietnam and upon return to Australia.

1. When questioned about the lack of documentation about his reflux complaint and treatment with Mylanta in his service records, the applicant stated that the record keeping in the Army at that stage was quite lackadaisical and that not all complaints were documented, in particular his infection with ringworm, for which he required medical treatment (Transcript, p8). 

2. The applicant gave evidence that he continued to take Mylanta upon his return to Australia for his reflux symptoms and in the late 1960s, after his discharge from the Army, saw a doctor in Bunbury who advised him to continue with it.  In approximately 1973/1974 he had a barium meal to investigate the problem and no abnormality was found.  He stated that it was not until 1989 when he underwent an endoscopy in Derby that he was diagnosed as suffering from Barrett's oesophagus and hiatus hernia and was placed on Zantac tablets.  The applicant is still required to visit his specialist, Dr Glaser, to monitor his condition, and is currently taking Losec tablets for his reflux symptoms.

3. When questioned about his smoking habit, the applicant agreed that he has "smoked on and off through most of [his] life" (Transcript, p27).  He gave evidence that he first commenced smoking about 10-15 cigarettes a day in 1960, prior to his enlistment in the Army in 1961.  He stated that he ceased to smoke in 1962 or 1963 because he was playing football and did not recommence until around June 1966 whilst in Vietnam.  He attributed his recommencement of smoking to the availability of the cigarettes in his ration packs and to the stress of the situation in which he found himself.

4. The applicant gave evidence that he stopped smoking upon his return to Australia and did not commence smoking again until 1972.  He smoked for a period of approximately 12 months and then stopped, not recommencing again until 1977.  He smoked again until 1980 and once again stopped for a period of time.  He recommenced once again in approximately 1992 at a time when he was under a great deal of stress at work.   He stated that currently he is an "occasional social smoker" (Transcript, p11) and only smokes one or two cigarettes a day.  He stated that he did not consider his habit to be an addiction, but that it did help to calm him down (Transcript, p27).

5. The applicant stated that his smoking did not affect his reflux symptoms, and that even when not smoking, the reflux symptoms were still present (Transcript, p12).

6. When questioned about his alcohol consumption, the applicant stated that he did not drink alcohol prior to joining the Army as he was under the legal drinking age.  He commenced drinking at the age of eighteen whilst in the Army in Australia and drank approximately half a dozen cans of beer a week, mainly on Friday and Saturday nights.  His drinking habits remained the same until he went to Vietnam, where he drank an average of 3-4 cans of beer a night.  In his evidence the applicant stated that he felt drinking alcohol was a way to ease the tension whilst in Vietnam.

7. The applicant stated that he continued drinking on his return from Vietnam, but that he eventually gave it away.  He gave evidence that in the past 4-5 years his drinking has commenced again and that he now drinks 4-5 cans of beer a night and shares a bottle of wine with his wife two or three times a week. The applicant stated that drinking alcohol makes his life easier and that he has "got to have a drink just to keep [himself] sane".  (Transcript, p25).

8. The applicant stated that his reflux symptoms were present when he abstained from alcohol and worsened if he drank excessive quantities of alcohol  (Transcript, p25).
   The Law

9. Section 9(1) of the Act relevantly provides:

   "Subject to this section, for the purposes of this Act, any injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

   (a)the injury suffered, or disease contracted, by  the  veteran  resulted  from an occurrence  that  happened  while  the veteran was rendering operational service;

   (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

   ...".

As the applicant in this case did render "operational service" whilst serving in Vietnam and his original claim for pension for the condition of GORD was lodged after 1 June 1994, ss120 and 120A apply.  They relevantly provide:

"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
...
120A    (1)       This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

...

(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has  determined  a Statement  of  Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

(b)has  declared  that  it  does  not  propose  to  make  such  a Statement of Principles.

(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B (2) or (11); or

(b)       a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection

(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)       the kind of injury suffered by the person; or

(b)       the kind of disease contracted by the person; or

(c)       the kind of death met by the person;

as the case may be."

1. The Repatriation Medical Authority ("the RMA") has, pursuant to s196B of the Act, determined a Statement of Principles ("SoP") in respect of the condition of GORD, namely Instrument 121 of 1995. That Instrument relevantly states:

   "1.   Being of the view that there is sound medical-scientific evidence that gastro-oesophageal reflux disease and death from gastro-oesophageal reflux disease can be related to operational service rendered by veterans, … the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of that service, are:
   …

   (c)suffering from hiatus hernia at the time of clinical onset of gastro-oesophageal reflux disease; or

   …

   (j)smoking cigarettes or other tobacco products as an addiction before, and until the clinical onset of gastro-oesophageal reflux disease; or

   (k)exhibiting psychoactive substance abuse or dependence involving alcohol before, and involving the consumption of alcohol continuing at least until, the clinical onset of gastro-oesophageal reflux disease; or

   …
   'psychoactive substance abuse or dependence' means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:

   (a)       continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by the use of the substance; or
   (b)       recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)."

1. Factor 1(c) in the SoP for GORD includes "suffering from hiatus hernia at the time of clinical onset " of GORD. 

2. An SoP related to hiatus hernia was promulgated in 1999 after the application to this Tribunal was lodged  (Instrument No 42 of 1999).  It relevantly provides:

   "Kind of injury, disease or death

   2.        (a)       not relevant
   (b)       For the purposes of this Statement of Principles,

   "hiatus hernia" means a herniation of part of the stomach into the thoracic cavity through the oesophageal hiatus in the diaphragm, attracting ICD-9-CM code 551.3, 552.3. 553.3 or 750.6.  This definition also includes sliding hiatus hernia and paraoesophageal hiatus hernia.

   …
             Factors that must be related to service

   4.Subject to clause 6, the factors set out in clause 5 must be related to any relevant service rendered by the person.

   Factors

   5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hiatus hernia or death from hiatus hernia with the circumstances of a person's relevant service is:

   (a)for paraoesophageal hiatal hernia only, inability to obtain appropriate clinical management for hiatus hernia."

1. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pp 97-98) the course of reasoning to be followed by the Tribunal in cases like the present in which s120A of the Act applies:

   "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 s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved."

Consideration of Issues

1. It is accepted between the parties, and also by the Tribunal, that the applicant is suffering from GORD, as evidenced by the reports of Dr Glaser.

2. The first issue for the Tribunal to consider is the date of clinical onset of the applicant's condition of GORD.

3. In his oral evidence, the applicant stated that he first began to suffer reflux symptoms whilst serving in Vietnam and he then commenced taking Mylanta as treatment for this. However, his service medical records contain no evidence of his suffering from, or seeking treatment for, that condition, nor is there any record of his having suffered from gastro-oesophageal reflux in his medical examinations in 1979 or 1984.  The first medical record of him suffering from the disease was upon gastroscopy at Derby Hospital in 1986.

4. Despite this lack of documentary evidence, however, Dr Glaser and Dr Crawford opined that the applicant's reflux may be longstanding and severe and could date back to his time of service in Vietnam.

5. Given the opinions of both Dr Glaser and Dr Crawford, and the oral evidence of the applicant, the Tribunal is prepared to accept that the date of clinical onset of the applicant's GORD was in 1966 whilst serving in Vietnam.  The Tribunal accepts the applicant's evidence that he was taking medication for reflux symptoms whilst in Vietnam and on return to Australia, and that the lack of service medical records to this effect does not preclude such a finding, given the applicant's evidence about the apparent "lackadaisical" method of keeping records, in particular the failure to also record his episode of ringworms.

6. This being the case, the Tribunal accepts that there is a possible hypothesis connecting the applicant's condition of GORD with his relevant service.  The next step, therefore, following the reasoning set out from Deledio in paragraph 33 above, is to examine the SoP relating to GORD to establish whether this hypothesis fits within the template set out in that SoP and can then be said to be reasonable.

7. Given the applicant's medical history, three factors in Clause 1 of the SoP relating to GORD are relevant.  Firstly, factor 1(c) relating to hiatus hernia, secondly, factor 1(j) relating to cigarette smoking, and lastly, factor 1(k) relating to alcohol abuse and dependency.  Each shall be considered in turn.
   Factor 1(c) - Hiatus Hernia

8. The first factor to consider, then, under the SoP No 121 of 1995 with respect to GORD, is factor 1(c) – suffering from hiatus hernia at the time of clinical onset of GORD, that is, at the applicant's time of service in Vietnam in 1966.

9. In determining this issue it is clear that SoP No 121 of 1995 must be applied as it was in existence well before the date of the claim to the Commission on 23 October 1997.  It is not so clear whether the subsequent SoP No 42 of 1999 with respect to hiatus hernia (see para 32 above) should also be applied as it came into force after the determination by the Commission and the VRB and after the date of the application to this Tribunal.  If this SoP must be applied it is our opinion that it would preclude the applicant from establishing a reasonable hypothesis relying on hiatus hernia to link his GORD to the circumstances of his war service.
   This is a question of current controversy as to whether a claimant has an accrued right to have his application determined in accordance with the law as it stood at the date of his application.  The Full Federal Court in Re Ogston and Repatriation Commission (1999) 86 FCR 578 held there was no such accrued right protected by s8 of the Acts Interpretation Act 1901 when an SoP which limits the claimant's rights comes into force after the date the claim is lodged but before the determination by the Commission.  In Repatriation Commission v Keeley [2000] FCA 532 the Full Federal Court held that a second SoP which came into force after the determination by the Commission and the VRB, but before the application to the Administrative Appeals Tribunal should not be applied as the applicant had the right to have the application determined according to the law as it was at the date he put the appeal process into motion.  Those cases contain conflicting obiter dicta on the question of whether or not the promulgation of an SoP involves substantive or procedural law.  The recent case of Thompson v Repatriation Commission [2000] FCA 939 determined by a single Federal Court judge concerns a similar sequence of events to the case presently before us as the SoP was promulgated after the application for review by the Administrative Appeals Tribunal.  We respectfully agree with the reasoning of Madgwick J in its entirety, by which he distinguishes Ogston, as in Ogston the applicant gained no accrued rights to have his case determined without reference to an SoP which was promulgated before the Commission made the initial determination.

10. Accordingly this case must be determined without reference to SoP No 42 of 1999 as the applicant has the right to have his case determined in accordance with the law as it was when he sought review of the Commission's decision by the VRB.

11. Applying factor 1(c) of SoP No 121 of 1995, the Tribunal finds that there is no evidence that the applicant was suffering from hiatus hernia at the time of clinical onset of GORD during his time of service in Vietnam in 1966.  The first evidence of a sliding hiatus hernia is reported to have shown up briefly during an endoscopy in July 1986 when the applicant was undergoing tests at Derby Regional Hospital regarding his serious reflux problem.  Dr Glaser was unable to see a sliding hiatus hernia on two examinations between 1996 and 1999.  He said a sliding hiatus hernia is usually small and does not cause symptoms.
    The fact that the applicant was suffering from fairly mild reflux symptoms in 1966 is not evidence that he suffered from sliding hiatus hernia at the time.
    It follows therefore that no reasonable hypothesis can be raised connecting the applicant's GORD to the circumstances of his service by means of factor 1(c) relating to hiatus hernia.
    Factor 1(j) - Cigarette smoking

1. The next relevant factor in the SoP relating to GORD is factor 1(j) – smoking cigarettes or other tobacco products as an addiction before, and until the clinical onset of GORD.

2. The applicant's evidence, as confirmed by his medical records, is that he commenced smoking in 1960, the year prior to his commencing in the Army.  He then stated that he stopped smoking in 1962 or 1963 and did not re-commence until he went to Vietnam in 1966.  He smoked while in Vietnam as cigarettes were readily available in his ration packs and helped him to deal with the stress of the situation.  He once again stopped smoking upon return to Australia, only to recommence again upon separation from his wife and when under pressure at work.

3. When questioned about his smoking habits the applicant stated:

   "MR PONNUTHURAI:  You have smoked on and off through most of your life? --- Yes.
   Do you find it difficult to give away?--- Sometimes it does, all depends how I feel at times.  I can give it away and then all of a sudden something will happen in my life where it stresses me out and…
   You feel you need to have another one? --- …I need to have a cigarette again.  And it's not an addiction of course, it's just that I want to – I just need something to sort of calm me down,…"  (Transcript, p27)

4. Despite the applicant's evidence that smoking "calms [him] right down" (transcript, p27), the Tribunal is of the opinion that the "on and off" smoking habit in times of stress that the applicant has had for many years does not amount to an addiction.  The applicant does smoke for periods of time when under pressure or stress, but ceases upon resolution of the stressful circumstances, abstaining from smoking for long periods of time.  In the eyes of the Tribunal this ability to stop smoking at will does not indicate an addiction to cigarettes on the part of the applicant, and therefore factor 1(j) of the SoP for GORD is not satisfied.

5. Alternatively, even if this habit could be seen to be an addiction, it was one that commenced prior to his eligible service and has continued until the present and therefore that addiction could not be seen to be war-caused for the purposes of factor 1(j) of the SoP for GORD.

6. The Tribunal finds therefore, that no reasonable hypothesis can be raised connecting the applicant's condition of GORD to the circumstances of his service by means of factor 1(j) relating to an addiction to cigarettes.
   Factor 1(k) – Alcohol abuse and dependency

7. The final relevant factor in the SoP relating to GORD is factor 1(k) – exhibiting psychoactive substance abuse or dependency involving alcohol before, and involving the consumption of alcohol continuing at least until, the clinical onset of GORD.

8. The applicant's evidence is that he did not drink alcohol prior to 1962 when he turned 18 years of age.  He was in the Army in Australia at the time and drank approximately half a dozen cans of beer a week, mainly on Friday and Saturday nights.  His level of consumption remained the same until he went to Vietnam, where he drank an average of 3-4 cans of beer a night as a way "to try and ease the tension of what was happening there"  (transcript, p12).  Upon returning to Australia it was the applicant's evidence that he began to drink more heavily, but then slowly gave it away and it has only been in the last 4-5 years that he has resumed drinking on a regular basis.

9. When questioned about the nature of his drinking, the applicant stated:

   "DR STAER:  So could you live without alcohol? Would you say you're dependent on alcohol? --- At this stage I'd say that if I didn't have my alcohol, I'd probably – I don't know what I'd do.  You know, I've got to have my alcohol.  I've got to have a drink just to keep myself sane, I think, you know.  I don't know.
   …
   What do you mean, it makes life easier for you? --- It does.  Definitely makes life easier.  If I didn't have my cigarettes or alcohol, at time, I don't know what I'd do.
   …
   Now, does your alcohol intake ever mean that you can't drive a bus or you miss time from work? --- No.  No, I never have.  I never drink until I finish work at night.  It's not a – you know, I haven't got an alcohol problem where I'm drinking 24 hours a day. I just like to sit down after – at night and have the odd couple of drinks and a glass of wine every now and again."  (Transcript, p26)

1. The SoP defines the element of "psychoactive substance abuse or dependency" in factor 1(k) as meaning "maladaptive pattern of use" such that it requires a known persistent social, occupational, psychological or physical problem or leads to physically hazardous circumstances (see para 30 above).

2. The applicant's evidence was that, although his consumption of alcohol increased whilst in Vietnam, he quit completely after returning to Australia and only commenced again in the past 4-5 years.  The Tribunal does not accept that this pattern of use demonstrates a dependency on or abuse of alcohol arising from the applicant's relevant service.  The fact that he was able to abstain from alcohol for an extended period would seem to indicate a lack of dependency on the part of the applicant arising from his relevant service in Vietnam. 

3. The evidence also showed that, although the applicant drank of an evening to relieve his stresses, it never interfered with his work and he never drove whilst under the influence of alcohol.  There was also no evidence that the use of alcohol gave rise to any persistent physical or social problems, and the Tribunal therefore finds that there is no evidence of the applicant exhibiting psychoactive substance abuse or dependence as required under factor 1(k) of the SoP relating to GORD.

4. The Tribunal concludes, therefore, that there is no reasonable hypothesis linking the applicant's condition of GORD and his relevant service under factor 1(k) of the SoP relating to GORD.
   Conclusion

5. Having determined that no reasonable hypothesis can be raised under the SoP relating to GORD to link the applicant's condition with his relevant service by means of his hiatus hernia, cigarette smoking or alcohol consumption, the Tribunal finds that the applicant's condition of GORD is not a war-caused injury or a war-caused disease within the meaning the meaning of s9 of the Act.
   Decision

6. Accordingly, the Tribunal affirms the decision under review.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President T E Barnett, Brigadier R D F Lloyd and Dr P A Staer

Signed:

..............................(sgd S Railton)............................
Associate

Date of Hearing  15 May 2000 
Date of Decision  13 November 2000
Counsel for the Applicant        Mr B Cooper
Solicitor for the Applicant          
Counsel for the Respondent    Mr C Ponnuthurai
Solicitor for the Respondent