Dougherty and Repatriation Commission (Veterans' entitlements) - [2019] AATA 706

Dougherty and Repatriation Commission (Veterans' entitlements) [2019] AATA 706 (16 April 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3532
Re:Brian Dougherty
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:16 April 2019
Place:Sydney

For the reasons set out below, the Tribunal:
(a)affirms the Reviewable Decision in relation to the alcohol use disorder;
(b)sets aside the Reviewable Decision in relation to the hypertension; and
(c)makes a decision in substitution that the Applicant suffers from hypertension that was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

.........................[SGD]...............................................
Senior Member Linda Kirk
CATCHWORDS
VETERANS’ AFFAIRS – disability pension claim – alcohol use disorder – hypertension – Deledio Principles – where hypothesis for claimed conditions consistent with templates in relevant Statement of Principles– whether claimed conditions were war-caused – where alcohol use disorder not war-caused – where hypertension war-caused – decision set aside in part
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Benjamin v Repatriation Commission (2001) 64 ALD 411
Blain v Repatriation Commission [2017] FCA 114
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 242
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FAFC 23; (2005) 85 ALD 1
Lees v Repatriation Commission (2002) 125 FCR 331
McLean v Repatriation Commission [2001] FCA 243
Re Parotte and Repatriation Commission [2004] AATA 536
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Warren (2008) 167 FCR 511
Stevens v Repatriation Commission [2018] FCA 1866
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004
Statement of Principles concerning Hypertension No. 63 of 2013 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004
REASONS FOR DECISION
Senior Member Linda Kirk
16 April 2019
INTRODUCTION AND BACKGROUND

Mr Brian Dougherty (‘the Applicant’) was born in 1949 and is 69 years old. He was conscripted into the Australian Army (‘the Army’) on 22 April 1970 when he was 20 years of age and served in the Army until his discharge on 9 December 1971.[1]
[1] T3.
The Applicant rendered operational service in South Vietnam from 17 February 1971 to 7 October 1971.[2]
[2] T3.
On 20 January 2009, the Applicant lodged a claim for disability pension for hypertension and alcohol abuse. On 19 May 2009 the Repatriation Commission (‘the Respondent’) denied the Applicant’s claim.[3] This decision was affirmed by the Veterans’ Review Board on 19 April 2010.[4]
[3] T34.
[4] T37.
The Applicant lodged a claim for disability pension with the Respondent on 10 February 2014[5] seeking acceptance of liability for hypertension, alcohol abuse, shortness of breath, erectile dysfunction, cataracts (both eyes), sensorineural hearing loss, tinnitus and bowel problems. The Applicant also sought an increase in his disability pension for his accepted skin condition. The Applicant contended that these conditions were related to his service.
[5] T40.
By Determination dated 25 August 2014 the Respondent:
(a)accepted liability for erectile dysfunction, acquired cataracts in both eyes, sensorineural hearing loss and tinnitus with effect from 4 December 2013;
(b)denied liability for hypertension and alcohol use disorder;
(c)found no medical condition to answer the claim for bowel problems and shortness of breath;
(d)increased the Applicant’s pension to 40% of the general rate from 4 December 2013.[6]
[6] T66.
On 3 September 2014, the Applicant lodged an application for review of the Determination by the Veterans’ Review Board.[7]
[7] T67.
In a decision dated 10 May 2016 (‘the Reviewable Decision’)[8] the Veterans’ Review Board:
(a)affirmed the Determination in relation to hypertension, alcohol use disorder and bowel problems and shortness of breath;
(b)set aside the Determination insofar as it related to the assessment of the Applicant’s pension and substituted its decision that the pension be paid at 40% of the General Rate from and including 13 November 2013 and subsequently be increased to 50% of the General Rate from and including 9 October 2015.
[8] T84.
On 10 June 2016, the Applicant lodged an application for review of the Reviewable Decision in this Tribunal.[9] The application was limited to review of the decision to deny liability with respect to alcohol use disorder and hypertension.
[9] T2.
ISSUES FOR DETERMINATION
The issues which require determination by the Tribunal are:
·Did the Applicant render operational service and if so, when?
·Does the Applicant suffer from alcohol use disorder and/or hypertension (‘the Claimed Conditions’)?
·Were the Claimed Conditions war-caused? This requires the Tribunal to consider:
oDoes the available material points to a hypothesis connecting the Claimed Conditions with the circumstances of the service rendered by the Applicant;
oIf so, are there in force relevant Statements of Principles (‘SoPs’);
oIf so, is the hypothesis consistent with the templates to be found in the SoPs and is therefore a reasonable hypothesis;
oIf so, considering s 120(1) of the Veterans’ Entitlements Act 1986 (Cth) (‘the VEA’), can the Tribunal be satisfied beyond a reasonable doubt that the Claimed Conditions were not war-caused.
JURISDICTION
Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) provides that the jurisdiction of the Tribunal is given to it by other ‘enactments’ which grant the Tribunal jurisdiction to review certain decisions made under those enactments:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 175 of the VEA gives the Tribunal jurisdiction to review a decision of the Veterans’ Review Board:
(1)If:
(a)a decision of the Commission has been reviewed by the Board upon an application made under section 135; and
(b)either:
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
(1AA)For the purposes of subsection (1), the decision made by the Board is taken to be:
(a)if the Board affirms a decision-that decision as affirmed; or
(b)if the Board varies a decision-that decision as varied; or
(c)if the Board sets aside a decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies-the decision made by the Board in substitution for the decision so set aside.
Consequently, the Tribunal has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard at a hearing of the Tribunal in Sydney on 3 and 4 December 2018.
The Tribunal heard evidence from the following witnesses at the hearing:
·The Applicant;
·Dr Anthony Dinnen, psychiatrist, who was called by the Applicant and gave evidence by telephone; and
·Dr Selwyn Smith, consultant psychiatrist, who was called by the Respondent and gave evidence in person.
The following material was before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions dated 23 May 2018;
·Statement of the Applicant dated 3 July 2017 (Exhibit A1);
·Letter from the Applicant dated 23 April 1971 (Exhibit A2);
·Letter from the Applicant dated 13 June 1971 (Exhibit A3);
·Medical report of Dr Anthony Dinnen dated 14 June 2017 (Exhibit A4);
·Supplementary medical report of Dr Anthony Dinnen dated 27 February 2018 (Exhibit A5);
·Australian War Memorial website extract relating to fire support base Beth and fire support base Ziggy (Exhibit A6);
·Alcohol Fact Sheet from the Department of Health (Exhibit A7);
·the Respondent’s s 37 documents (T1 to T89, pages 1-346) (Exhibit R1);
·the Respondent’s Statement of Facts, Issues and Contentions dated 13 June 2018;
·Extract of documents produced under summons by Queen Street Medical (Exhibit R2);
·Letter from Applicant dated 31 May 1971 (Exhibit R3);
·Five letters and one postcard authored by the Applicant and addressed to family dated 31 May 1971 (Exhibit R4);
·Medical Report of Dr Selwyn Smith dated 7 August 2017 together with letter of instruction dated 26 July 2017 (Exhibit R5);
·Transcript of Veterans’ Review Board hearing 10 May 2016 (Exhibit R6).
The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, the evidence of the Applicant and the expert medical evidence. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case and to be heard by the Tribunal.
LEGISLATIVE FRAMEWORK
Eligibility for Pension
Part II of the VEA provides, inter alia, for pensions for veterans who have become incapacitated from a war-caused injury or a war-caused disease.
Subsection 13(1) of the VEA sets out when a veteran will be eligible for a pension:
(1)Where:
…
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the veteran-pension by way of compensation to the veteran;
in accordance with this Act.
Definitions
Subsection 5D(1) of the VEA contains the following relevant definitions:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.
Hypertension and alcohol use disorder are ‘ailments’ and would therefore meet the definition of a ‘disease’ in s 5D(1) of the VEA.
Section 115A of the VEA defines a ‘veteran’:
veteran means:
(a)a person:
(i) who is, because of section 7, taken to have rendered eligible war service; …
Subsection 7(1) of the VEA defines ‘eligible war service’:
Eligible war service
(1)Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …
With respect to whether an injury or disease is ‘war-caused’, s 9 of the VEA provides:
War caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an 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:
…
(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;…
…
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident-that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease-the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
Standard of proof
Subsection 120(1) provides the applicable standard of proof where a claim under Part II is made in respect of incapacity from a veteran’s operational service:
Standard of proof
(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
…
Subsection 120(1) does not create a presumption that an injury or disease was war-caused, nor does it impose on a veteran an onus to prove that the injury or disease is war-caused: Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Deledio’) at 98.
Subsection 120(3) outlines one circumstance where the Commission is required to find that there is ‘no sufficient ground’ for the purposes of s 120(1) and (2):
(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.
This effect of this subsection was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) by Mason CJ, Deane and McHugh JJ at 413-414:
Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact…
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some material fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
In East v Repatriation Commission (1987) 16 FCR 517 at 532, the Full Federal Court observed that the relevant hypothesis must ‘find some support’ in the evidence adduced and that the evidence must ‘point to, and not merely leave open’ the hypothesis relied upon.
Section 120A was inserted into the VEA to address the difficulties inherent in identifying the existence of a causal connection between service and the claimed injury or disease. As Deputy President Sosso has noted, ‘[t]he purpose of this section was to provide a sound and consistent basis for determining the reasonableness of a hypothesis from a medical/scientific perspective’: Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584 (Brackin) at [27].
Subsection 120A(3) of the VEA provides:
(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.
Statements of Principles
Statements of Principles are determined by the Repatriation Medical Authority (‘the Authority’). Subsection 196B(2) of the VEA relevantly provides:
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
The expression ‘related to service’ for the purposes of the Act is detailed in s 196B(14):
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury--it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
…
In Deledio v Repatriation Commission (1997) 47 ALD 261 at 275, Heerey J explained the function of SoPs:
it is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
Therefore when s 196B(2) says a factor ‘must…exist’ and ‘must be related to service’ it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific 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.

With respect to the Applicant’s claim for alcohol use disorder, the current Statement of Principles is the Statement of Principles concerning Alcohol Use Disorder No. 48 of 2017 (SoP No. 48 of 2017) which commenced on 18 September 2017. The Statement of Principles that was, however, in effect at the date of the determination of the delegate of the Repatriation Commission on 25 August 2014 was the Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (SoP No. 1 of 2009). It is agreed between the parties that SoP No 1. of 2009 is relevant to applicant in this matter.
With respect to the Applicant’s claim for hypertension, the current Statement of Principles, and that which was in effect on the date of the determination of the delegate of the Repatriation Commission on 24 August 2014, is the Statement of Principles concerning Hypertension No. 63 of 2013 (SoP No. 63 of 2013), which commenced on 4 September 2013.
Deledio Principles
In Deledio the Full Court of the Federal Court identified a four step process which the Tribunal must undertake in applying s 120(1) and s 120(3) of the VEA, as affected by s 120A, in particular s 120A(3).
A central task for the Tribunal is to identify and assess the Applicant’s hypothesis. As Deputy President Sosso noted in Brackin at [38], ‘[t]he fact that the Act utilises the language of an “hypothesis” alerts the decision maker to the difficulties perceived by the Parliament in proving facts in a military setting, possibly many years after the event.’ As Black CJ, Ryan and Einfeld JJ observed in Repatriation Commission v Stares (1996) 66 FCR 594 at 601, ‘an hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.’: see Brackin at [38].
The Tribunal has accepted that the correct application of s 120 (and related provisions) is in accordance with the methodology outlined by the Full Court of the Federal Court in Deledio.
In Deledio, the Full Court at 97-98 identified the four steps to be taken in determining claims which arise from operational service:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of claim for incapacity that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’
The Federal Court has emphasised that strict reliance on the ‘Deledio principles’ as if they were a legislative mandate would be an error: Hill v Repatriation Commission [2005] FAFC 23; (2005) 85 ALD 1 at 16 – 17. However, as Deputy President Sosso observed in Brackin, ‘the Deledio ‘methodology’ is a useful tool in guiding decision-makers through the byzantine maze of veterans’ affairs law and assists in preventing the decision maker falling into error’ at [41] citing Logan J in Blain v Repatriation Commission [2017] FCA 114 at [9].
APPLICANT’S EVIDENCE
The Applicant provided a statement dated 3 July 2017, the relevant sections of which are extracted under the sub-headings below. The Applicant provided further information during his oral evidence at the hearing as detailed below.
Employment and drinking habits prior to service
Prior to his service, the Applicant was employed by the Bank of New South Wales as a junior bank teller.[10]
[10] Transcript of proceedings, 3 December 2018, p10-11.
In his written statement, the Applicant described his social and drinking habits prior to being conscripted into the Army:
I never drank alcohol until after starting work in my banking career in December 1966. From that time until I commenced my national service I drank on an irregular basis socially.
My drinking on that basis would have been no more than 2 or 3 beers.
In that time I did not drink alcohol on a daily or even a weekly basis. My drinking of alcohol was limited to social occasions or following my involvement in active sporting events. During that time I did not exclusively drink alcohol. Soft drinks and water were the main items in my drinks menu.[11]
[11] Exhibit A1, paragraph 15. See further Transcript of proceedings, 3 December 2018, p11.
Pre-deployment training and drinking habits
The Applicant described in his statement the training he received in Australia following his conscription and his drinking habits prior to his deployment to Vietnam:
At the time around my 20th birthday I was conscripted to serve 2 years national service in the Australian Army. I completed basic training at Singleton in New South Wales, corps training at Puckapunyal in Victoria and then was posted to 186 Air Dispatch Coy at Wallgrove in Sydney before my posting to Detachment 176 Air Dispatch Coy at Nui Dat, South Vietnam in February, 1971. During the course of my army service my drinking habits changed.
Our basic training course at Singleton was intense, both physically and mentally, and lasted for 10 weeks. At first we were not permitted to consume any alcohol at all. From memory this was for a period of approximately 3 to 4 weeks. We were then allowed access to the canteen on a daily basis each evening and allowed to purchase beer for consumption in the canteen only. All facets of our training seemed to want us to do everything together. We were bonding as ‘a unit’ by this stage of our training, and the normal activity was to consume 3 to 4 beers during the limited time available to us each evening.
Again, from memory, most if not all members of our training section and platoon partook in this activity each day. As our 10 week course unfolded we were allowed some weekend leave locally, plus one weekend when we were allowed to visit our homes individually. During those few weekend periods our leave consisted of leaving the army base and visiting the nearby town of Singleton. Almost all of the time on these visits was used by visiting a local hotel and consuming alcohol. My alcohol consumption was limited to beer. During these times my consumption would have been in excess of the 3 to 4 beers mentioned above.
Following completion of our basic training, we were allocated different corps in the army to be trained to fulfil more specific roles during our service. In my case I was transferred to Puckapunyal in Victoria for training initially as a driver then more specifically for a role as an Air Dispatcher. Puckapunyal is located nearby the town of Seymour approximately an hour or so from Melbourne. This training was to be completed over another 10 week period. It was not as physically intense as our basic training had been. But it was challenging enough, being completely different to what I had been used to as a young country bank officer. Our group now was not limited to National Servicemen just out of basic training. It also included regular soldiers transferring from one role or corps to another. We were all living still in a ‘barracks’ situation, although now were sharing a room with one or two other soldiers and not 15 others. During this training we had daily access to our canteen which sold beer. We visited this facility together on a daily basis during the term of our course. Once again here, I was probably drinking a minimum of 3 to 4 beers per day. We were allowed more liberal leave privileges now than during basic training. These involved either staying on the base or visiting nearby Seymour. Again, this involved similarities to the above Singleton visits and almost exclusively involved a visit to a local pub and extended drinking sessions. On several occasions we were allowed full weekend leave when we visited Melbourne. These visits involved an overnight stay, usually in a hotel. Once again, extended periods of time were spent during these leave periods when we drank alcohol. My alcohol drinking habits still mostly only included beer. Daily alcohol intake on these weekends easily exceeded the 3 to 4 beers daily during the week.
By this time it was clear to me that daily drinking sessions after work was completed, was in fact considered the normal thing for soldiers to do.
I completed this training course around September 1970 and was transferred to 186 Air Dispatch Coy and stationed on site at the unit's base in Wallgrove, Sydney. Our unit had some soldiers living on base as well as some who lived off base in nearby suburbs. All of us national servicemen resided on base. Once again, we had our own canteen where beer was available after work hours. Most of us who resided on base frequented our canteen and drank beer on a daily basis. Regular weekend leave was allowed and we visited the Sydney City and Kings Cross areas regularly. On these leave periods a large amount of time was spent in various hotels and clubs drinking various amounts and types (beer and spirits) of alcohol. During this time I would've been drinking at least 3 to 5 beers per day during the week and considerably more alcohol (including some spirits) on weekends. There was no opportunity to participate in organised sport or other recreation.
Our unit was chosen to complete guard duty at Victoria Barracks. We were trained to complete particular drills which would be used during the week of our duty. Our guard contingent was split in two as we were on guard duty on a ‘day on - day off’ basis. I was among those chosen in the section which completed the Thursday Cenotaph Guard in Martin Place. We marched from Macquarie Street down Martin Place where we did some drills and stood guard in memory of previously fallen servicemen. Upon completion we marched back up Martin Place before being dismissed. It was during this ceremony we were abused and spat at by members of the so called ‘Save Our Sons’ movement. This consisted of mainly women purported to be mothers of national servicemen sent to Vietnam against their wishes. Little did they either know or care, that several of the diggers they abused that day were in fact young national servicemen who had, or soon would be, serving their country in the very same war. Just another incident for a young soldier to deal with that was not ‘in the instruction book’.
None of us diggers knew whether we would be deployed overseas or just complete our national service at Wallgrove. It was not long before I was told I would be going to Vietnam some time after the New Year in 1971. I completed jungle training at Canungra in the Queensland Gold Coast hinterland area in preparation for my upcoming deployment to duties with Detachment 176 Air Dispatch Coy in South Vietnam. It was during this two week training course that I ‘celebrated’ my 21st birthday on 5 December 1970.[12]
[12] Exhibit A1, paragraphs 16-21.
Deployment to and work and social activities in Vietnam
In his statement, the Applicant described his deployment to Vietnam and the work and social activities he engaged in following his arrival:
I left Australia for service in South Vietnam on my mother's birthday 18 February, 1971. Less than 12 months before then I was a young bank officer living and working at home in Grafton New South Wales. Like others before and after me, I had no real idea of what lay ahead for me.
We flew via Perth and Singapore to Saigon. We then flew to Nui Dat and I was taken to my new unit located within the Task Force maintenance area. We worked out of an area known as Pelican Heights 7 days a week mostly. When I first arrived there was a lot of tension within my unit following a shooting at Christmas which resulted in the death and wounding of some sergeants in the mess just near our tents. A court martial was in progress and some members of our unit were directly implicated as participants and witnesses. The shooting was carried out by one of the diggers from our unit and it was ‘common knowledge’ among the diggers that the intended target had been our own 2IC warrant officer.
On arrival I was not counselled at all by superiors as to the situation, just shown my bed space and told what time to be ready for work the next day. There was no acclimatisation and orientation period before becoming fully operational despite the situation.
Once again we had our own canteen area which was open each evening, and canned beer was readily available. Most members of our unit visited the canteen each night and drank varied quantities of beer. From the outset it was obvious the only outlet for any tensions was the ready availability of as much cold beer as one was desirous of drinking. The only times we would not drink at least 6 cans of VB a night would be those times we were rostered for some kind of picket or guard duty, or, we attended any of the number of fire support bases we supplied from Pelican Heights via helicopter.[13]
[13] Exhibit A1, paragraph 22-25.
Nui Dat and fire support bases
The Applicant told the Tribunal there were approximately 2,000 men stationed at Nui Dat when he arrived, mostly Australians and a company of New Zealanders.[14] He said that in 1971 the taskforce numbers had started to decrease but when the commitment was at its highest there were ‘three battalions plus support troops plus infantry plus air force … a battalion at full strength can be anything up to about 900 men.’[15]
[14] Transcript of proceedings, 3 December 2018 p 21.
[15] Transcript of proceedings, 3 December 2018 p20.
The Applicant was stationed at Nui Dat for 232 days, or approximately 70% of his service in South Vietnam. The Applicant explained to the Tribunal that Nui Dat was surrounded by perimeter wire and that most of their work was inside the perimeter.[16]
[16] Transcript of proceedings, 3 December 2018 p21.
In his oral evidence the Applicant told the Tribunal that a normal work day would be starting at 7:30am and finishing work at around 4pm. He worked as an Air Dispatcher in a team preparing ‘slung loads’ of artillery, water, fuel, food and ammunition to be sent out to fire support bases.[17]
[17] Transcript of proceedings, 3 December 2018 p18, lines 10-15.
In his oral evidence the Applicant described a typical fire support base:
They were literally mostly a small area. A couple of the bigger ones - Ziggy was probably - now I am testing my memory, but inside the - inside the wire there was probably - maybe the size of a suburban oval maybe, it’s probably about the best example I can give now, and in that area we - as individual guys you - when you first went there, you dug a hole in the ground yourself, or if you were lucky, if there was a backhole there or whatever that had been dropped in, if you were lucky you got them to dig the - most of your hole and you - that’s where you lived under - what was the name of the stuff? It was Ancro, I think. It was reinforced steel, I guess, is the best way to put it, domed protection from mortar and artillery fire.[18]
[18] Transcript of proceedings, 3 December 2018 p24.
In his statement, the Applicant described fire support bases and his team’s work in supplying them:
The bases were manned by the infantry battalions and artillery batteries. They were scattered at various points surrounding Nui Dat. Usually we were the lone air dispatcher at any fire support base. We worked in liaison with the infantry or artillery and our own people in Nui Dat, to coordinate air supply of any necessary fuel, water, food and ammunition to the fire support base. At different times during my time in Vietnam we had up to 4 or 5 fire support bases operating at a time. We took our turns either working solo at one of these bases or with rest of our unit in Nui Dat.[19]
[19] Exhibit A1, paragraph 26.
The Applicant told the Tribunal they would travel to the fire support bases by helicopter and carried their own weapon, SLR (self-loading rifle) and ammunition pack.[20] They would spend on average three weeks at a time at a fire support base, and then take a period of three days leave in Vung Tau.[21]
[20] Transcript of proceedings, 3 December 2018 p22.
[21] Transcript of proceedings, 3 December 2018 p33.
The Applicant was asked how he would feel when transiting by helicopter to a fire support base. He stated:
If you hadn’t been there before, to that particular base, you’d be wondering what it was going to be like, how long it was going to take to get there, what it was - yes, what might happen on the way. You - I had every confidence in the people that were taking us there, the pilots, the crews, as much as you can, but there was always a level of uncertainty, I guess.[22]
…
Well, there was - there was always the uncertainty, or the unknown factor. It’s - we weren’t there for - watch your slang, Brian. We weren’t there for a holiday. We were there because we were in a warzone. It’s - it’s not like a cowboy movie.[23]
[22] Transcript of proceedings, 3 December 2018 p23.
[23] Transcript of proceedings, 3 December 2018 p23.
The Applicant told the Tribunal that he was never subjected to mortar or artillery fire, but there was activity and gunfire outside the fire support bases which he observed and heard:
Mr Saunders:     What did you observe? What were you referring to?
Applicant:There may be enemy patrols in the area that we were indirectly told of; from my point of view, indirectly told of. You’d be aware that the infantry guys went - were on patrols and whatever and if it was fairly close by, and there were contacts, you would hear - hear gunfire.
Mr Saunders:    Did you ever hear gunfire yourself?
Applicant:         Yes.[24]
[24] Transcript of proceedings, 3 December 2018 p24, lines 23-29.
The Applicant explained further that the infantry would fire howitzers at ‘enemy people or positions, suspected or known’ on a regular basis.[25] He was asked how he felt when howitzers were fired:
As much as you could, you protected your ears if you were very near them because they made a big noise but, I guess - well, you were more alert, I guess, because you knew that there was something happening and, I guess, you’ve got to say that you hoped that they were doing the job that they were designed to and they were going to stop any threat to you but you were certainly more alert that there may be some need to be ready.[26]
[25] Transcript of proceedings, 3 December 2018 p25.
[26] Transcript of proceedings, 3 December 2018 p25.
Fire support base Ziggy
In his statement, the Applicant described his role in establishing a new fire support base, named Ziggy:
On one occasion another digger, myself and our sergeant went ‘bush’ for about a week to assist in the establishment of the new main fire support base for the recently arrived 3rd Battalion RAR. We were transported to the old base by helicopter, then to the new area by Armoured Personnel Carrier (APC).[27]
[27] Exhibit A1, paragraph 27.

He told the Tribunal that they left Nui Dat on Anzac Day 1971 and went by helicopter to the 3^rd battalion of the Royal Australian Regiment’s (3 RAR’s) existing base called fire support base Beth where they stayed one night and left at first light the following day.[28] While 3 RAR was stationed at Beth, they were attacked by the enemy and sustained casualties.[29]
[28] Transcript of proceedings, 3 December 2018 p25.
[29] Transcript of proceedings, 3 December 2018 p26.
The Applicant explained that they travelled for several hours in the APC from Beth to the new site, which was an area of open country about the size of a football pitch with trees and long grass.[30] There was no perimeter wire, but they established a three-point perimeter of protection by positioning an APC at three points in a triangle at 12 o'clock, 4 o'clock and 8 o'clock to guard the arc of fire in these areas.[31]
[30] Transcript of proceedings, 3 December 2018 p27.
[31] Transcript of proceedings, 3 December 2018 p40, lines 36-38 and p30 lines 31-39.
The Applicant described in his statement the guard duties he and other soldiers performed at night to protect the fire support base :
During the week our duties included nightly guard duty alone on 50 Calibre machine guns mounted on the APC's. A couple of hours alone late on a dark night in a war zone can be a traumatic experience for a young man who only 12 short months before was a young NSW country bank officer. We were not told much at all about what was going on. Rather, we were just told be ready to go on the chopper at 1500 hours and we'd be gone for about a week. The week just unfolded and we did what we were told to do. [32]
[32] Exhibit A1, paragraph 27.
The Applicant told the Tribunal that he was at the area that became fire support base Ziggy for five or six days. He manned the 50 calibre machine gun for a two hour period the first couple of nights to keep guard of the area.[33]
[33] Transcript of proceedings, 3 December 2018 p29.
In his oral evidence the Applicant provided more detail about these guard duties:
Well, the guard duties were - were spread around between mostly us privates and whatever because that’s what you did. Overnight when people sleep, if they’re lucky, when you’re in a situation like we were there, as I pointed out before, our points of - of reference were to look after and check the area away from us. I suppose from memory that circle that we established at that stage, the armoured personnel carriers were probably parked, I’m guessing but in the area of probably 60, 70 metres from each other; maybe slightly more.[34]
… So then after dark between last light and first light the next day you grabbed as much sleep as you could but during that time - and we worked in two hour shifts. On each armoured personnel carrier there would be one guy, one of us sitting up there looking, or trying to guard your section. Your armour, your protection was you had your own weapon, your own rifle and ammunition with you, but the main weapon that you had was the 50 calibre machine gun that was on the - and you were literally sitting there peering out into the night making sure that we were the only people out there, because we were left in no uncertain terms by the commanding officer of that unit, of armoured personnel carriers, that the only people that were there, as far as we knew, were us. If anyone was out there they weren’t us and do what you had to do - - Shoot them.[35]
[34] Transcript of proceedings, 3 December 2018 p28.
[35] Transcript of proceedings, 3 December 2018 p28.
The Applicant was asked how he felt when he was performing these guard duties:
Mr Saunders:     How did you feel when you were doing that?
Applicant:          Bloody frightened.
Mr Saunders:     Why?
Applicant:Because it was dangerous, it was potentially life threatening. It - it - I’ll always remember that the time of the month that it was, the time of the moon cycle when it was darkest, to my memory. There was absolutely no moon, it was pitch black, it was deathly quiet, and I’m sorry if I - maybe I shouldn’t use that term, deathly quiet, but absolutely no noise, for which I’m eternally grateful.[36]
[36] Transcript of proceedings, 3 December 2018 p29, lines 25-32.
The Applicant was asked what training he received in the use of the 50 calibre machine gun. He said the training was ‘five minutes’ in duration and it made him feel ‘[n]ot real confident’.[37] In relation to training to identify the enemy the Applicant explained:
We were told, literally, that the only people that were in our sphere of observation, I won’t say vision because you couldn’t see nothing in the dark; the only people that would be there were people that shouldn’t be there. If you saw anybody there they weren’t us, and don’t muck around, shoot them.[38]
[37] Transcript of proceedings, 3 December 2018 p30.
[38] Transcript of proceedings, 3 December 2018 p30, lines 17-21.
The Applicant explained that when he was not on guard duty on the APC he was on the ground outside the APC towards the back of it so that there was at least ‘a perceived element of protection’.[39]
[39] Transcript of proceedings, 3 December 2018 p31.
The Applicant told the Tribunal that during his time in Vietnam there was no actual threat on his life, he did not engage in combat, there was no physical attack on him and he was not threatened with a weapon.[40]
[40] Transcript of proceedings, 3 December 2018 p52.
Drinking culture in Australian Army
In his statement, the Applicant described the culture in the Army including the drinking culture that was prevalent:
In the Australian Army there was a strong emphasis and reliance on individuals to live and act as part of a team unit. You and your mate's survival literally hinged on the success of that bonding. There was a strong drinking culture within the army. Australian soldiers were trained to work hard and successfully. Australian soldiers also played hard when they got the chance. That ‘work hard - play hard’ ethos is etched in our country's history. Add the uncertainty of living and working in a hostile and unknown environment, and there is a menu in place for that ethos to continue to thrive. Rightly or wrongly each day was lived as if it may be your last.[41]
From the time I started my basic training right through until my discharge I believe the Australian Army's attitude of train them, work them and then let them take care of themselves, contributed specifically to the strong drinking culture among its members. Any approach to superiors for assistance with any personal issues or pressures was met with a curt dismissal and instruction to return to your work. Our support system consisted of our mates and our supply of cold beer.[42]
…
During my training at both recruit and corps training levels the army's drinking culture was aiding my subsequent drinking habit to develop.[43]
[41] Exhibit A1, paragraph 30.
[42] Exhibit A1, paragraph 31.
[43] Exhibit A1, paragraph 11.
Drinking habits in Vietnam
In his statement, the Applicant described his drinking habits in Vietnam when he was working and during periods of leave:
During my service my alcohol intake on a daily basis changed from basically none to initially 3 to 4 standard beers per day. On weekends or leave periods that may be more per day, maybe up to 8 to 10 or more beers per day. During my time in South Vietnam my daily consumption would be 5 to 6 cans of beer daily. On the occasions we worked alone on fire support bases we normally would not have access to any more than 2 cans per man per day. On leave periods of 3 days or more we would have access to spirits as well as beer and would drink for extended periods over that time. I would estimate that on these occasions we would drink 10 plus standard alcohol drinks per day.[44]
…
Leave in Vung Tau was another adventure altogether. Three days of relaxation either at the R&C Centre or visiting the many bars and night clubs of the city itself. Either way, most of the time was spent with a drink in hand. If we were at the R&C centre itself the drinks were the afore said cold cans of VB. If on the other hand we were in a local bar the choice was limitless and included spirits (whisky, rum, bourbon etc) as well as many other items. All provided the assistance to forget, or gain a release from, any stress or issues we may have been dealing with personally during our tour of duty.[45]
…
I believe I was drinking at least 300 grams of alcohol per week by the end of my service in Vietnam and subsequent discharge from the army. I have continued that habit over the years since that time.[46]
…
It was during my actual service in Vietnam that my alcohol consumption substantially increased to the levels it reached. I have stated that the major reason for my drinking habit reaching the level it did was the stress of participation in the Vietnam War the thought of being shot … on a young man of my age and limited experience.[47]
[44] Exhibit A1, paragraph 28.
[45] Exhibit A1, paragraph 28.
[46] Exhibit A1, paragraph 10.
[47] Exhibit A1, paragraph 11.
The Applicant told the Tribunal that when he was stationed at a fire support base for a period of two to three weeks he did not drink alcohol.[48]
[48] Transcript of proceedings, 3 December 2018 p51.
Drinking habits on return from Vietnam
In his statement, the Applicant described his return from Vietnam and the impact on him including his continued drinking:
In a nutshell there was a fair amount of alcohol consumed on my return home. There was a gap of nearly 2 months between my return from Vietnam to my actual discharge in December 1971. Political decisions by our government had reduced the term of our national service from 2 years to an eventual 18 months. Formal discharge was delayed as a result. Confusion reigned supreme once more in a young man's life.[49]
My alcohol consumption during this time was considerable. Once my formal discharge came I returned to work in the bank. Life had to go on. My life had changed once more. I still drank on a daily basis following my return to work and ‘normal life’. I was drinking more than 5 to 6 beers per day and sometimes spirits as well. Weekends gave more opportunity to even consume more than that regularly.[50]
A few weeks ago you are a soldier in a war zone. Now you are a country bank teller again. Transition period, post service de briefing or some assistance in dealing with every day issues was completely non-existent on the Army's part. If a digger had ‘issues’ he wanted to discuss during service, any approach to a superior would've been met with scorn and a dismissal to get back to work and stop whingeing. The way national servicemen were discharged and left alone to deal with the transition back to civilian life and hopefully an interrupted career I consider to be the main reason why my drinking habits at least continued.[51]
I believe I was drinking at least 300 grams of alcohol per week by the end of my service in Vietnam and subsequent discharge from the army. I have continued that habit over the years since that time.[52]
[49] Exhibit A1, paragraph 32.
[50] Exhibit A1, paragraph 32a.
[51] Exhibit A1, paragraph 33.
[52] Exhibit A1, paragraph 10.
In his statement, the Applicant described his continuing and current consumption of alcohol:
At present I still drink alcohol on a daily basis (with very few exceptions). The only occasions on which I would not drink on a daily basis would be those times when I have been too ill to do so.[53]
I presently drink 4 to 6 beers per day plus some spirits or wine on occasions. On some weekends or some social gatherings I may even drink more than that amount.[54]
I estimate that I would drink in excess of 6 standard alcohol drinks per day on average every day.[55]
There have been some occasions, particularly in recent years when I have given some thought to reducing my alcohol intake. Drinking alcohol since my service days has been part of my daily routine and I have not been able to cease my habit. As I've got older and read and heard of some of the effects alcohol consumption is supposed to have has sometimes led me to consider a reduction in my intake daily. However, to this date I have not done so to any real degree.[56]
[53] Exhibit A1, paragraph 34.
[54] Exhibit A1, paragraph 34a.
[55] Exhibit A1, paragraph 34b.
[56] Exhibit A1, paragraph 35. See further Transcript of proceedings, 3 December 2018, p71.
During a consultation with his general practitioner, Dr Ian Rae, on 4 September 2007 the Applicant described his alcohol consumption. Dr Rae recorded the following:
The Applicant drank four standard drinks on a day that he was drinking alcohol and that he drinks alcohol five or six days a week with six or more standard drinks on one occasion weekly.
During cross-examination, the Applicant was asked whether he was drinking about five or six days a week in September 2007. He replied ‘[p]robably, on most weeks, I probably drank every day of the week.’[57] He was asked whether he was drinking four drinks per day at this time to which he replied, ‘At least’.[58]
[57] Transcript of proceedings, 3 December 2018, p65, lines 1-4.
[58] Transcript of proceedings, 3 December 2018, p65, line 6.
In re-examination, the Applicant was asked whether when he told Dr Rae about his consumption of alcohol he was referring to actual drinks or standard drinks. He replied:
… when I spoke to Dr Rae at that time, I wasn’t really aware of standard drinks and whatever. When I spoke about drinks that I had, if I spoke about having four drinks five or six times a week, I was mostly talking about drinking at home or whatever. And I was talking about having at least four stubbies a day.
… And what I know now of the definition, or my understanding of the definition of standard drinks, that is more than four drinks a day.[59]
[59] Transcript of proceedings, 4 December 2018, p8-9.
The Applicant was asked what type of alcohol he was consuming in 2007 to which he stated he was drinking stubbies of full strength beer.[60] He added:
I still had the occasional glass of wine with dinner or whatever and the odd - not every day, but some days something like a Baileys or something, finish off, or a glass nip or even more, just a couple of fingers of scotch or bourbon in a mixer drink on top.[61]
[60] Transcript of proceedings, 4 December 2018, p10, line 7.
[61] Transcript of proceedings, 4 December 2018, p10, lines 17-20.
Health impact of drinking habits
The Applicant described in his statement the impact on his health of his drinking habits:
I never thought anything of my drinking because I was doing it every day since my service in the army and it seemed normal. In recent times, after discovering health symptoms, including those both accepted and rejected to this stage by DVA, could be affected by alcohol consumption I have read more and become more aware that I may have had a problem.[62]
…
My doctor had often made suggestions that I should cut down on the amount of alcohol I consumed, saying it was a generally accepted medical reason for some of my health issues that were showing up as I got older. I had never thought of my drinking habits as being a ‘problem’ as I had consumed alcohol almost daily since my national service in 1970/1971.[63]
Prior to returning to Grafton to live in 2000 I had not regularly visited any doctors over the years during my career in the bank. I was not aware at the time of any health issues other than my skin cancer treatments for which I had a Specific Care White Card issued to me in the early 1990's.[64]
As I was by this time in my 50's, I was becoming more aware of some health issues that most males of my age would more regularly visit a GP to have checked and get treatment if it was required.[65]
[62] Exhibit A1, paragraph 36.
[63] Exhibit A1, paragraph 5.
[64] Exhibit A1, paragraph 38.
[65] Exhibit A1, paragraph 39.
In relation to his hypertension the Applicant stated:
I have been treated for hypertension now for over ten years. Full and exact details of the types and dates of medication will be available from my medical records that would be supplied by my doctor. My doctor has advised me to reduce my alcohol intake continually over the time I have been his patient. My optometrist commented following an eye examination sometime around 2007/2008, that my eye tests had revealed I had been displaying hypertension tendencies from at least the 1990's.[66]
[66] Exhibit A1, paragraph 37.
In a medical impairment assessment form dated 23 February 2009, Dr Ian Rae, general practitioner, stated that the clinical onset of the Applicant’s hypertension was in 2007 and that he was taking medication to treat it.[67] Clinical notes from the Queen Street Medical Centre indicate that Dr Rae first recorded high blood pressure for the Applicant on 4 September 2007.[68]
[67] T26.
[68] Exhibit R2, 26.
In a report dated 30 April 2009, Dr Stephen Huntsman, psychiatrist, diagnosed the Applicant with alcohol abuse disorder under DSM-4.[69] He considered the Applicant had a genetic vulnerability toward alcohol abuse given his father’s history of alcohol abuse, and that the Applicant’s war service may have exacerbated his tendency to abuse alcohol.[70] However, Dr Huntsman pointed out that the Applicant’s war service coincided with the age where heavy drinking commences and many non-veterans also experience the onset of alcohol abuse disorder at that age.[71]
[69] Report of Dr Stephen Huntsman dated 30 April 2009, T31.
[70] T31, 134.
[71] Ibid.
Dr Ian Hayes, psychiatrist, reported on 28 April 2014 that the Applicant suffered ‘alcohol abuse’.[72] Dr Hayes said that whilst there was a connection between the Applicant’s alcohol intake and his operational service, ‘there are no particular events which appear to have triggered such a response.’[73] Dr Hayes considered it possible, not probable, that the Applicant’s hypertension was directly attributable to his alcohol intake.[74]
[72] Report of Dr Ian Hayes dated 28 April 2014, T47.
[73] T47, 202.
[74] Ibid.
Work and family life
The Applicant told the Tribunal that he worked at the Bank until 31 December 1999. He achieved a management position and had a successful career.[75] After he left the Bank he continued working in a range of full-time roles until 2010. Following this he had two part-time casual positions and retired in 2014.[76]
[75] Transcript of proceedings, 3 December 2018 at p58, lines 32-34.
[76] Transcript of proceedings, 3 December 2018 at p58-59.
The Applicant married his wife in 1982 and they remain married. He has two adult sons and two siblings and he is close to all his family members.[77]
[77] Transcript of proceedings, 3 December 2018 at p59.
The Applicant told the Tribunal that he played competitive sport, including rugby, and continues to play golf regularly.[78]
MEDICAL EVIDENCE
[78] Transcript of proceedings, 3 December 2018, pp 83-84.
Dr Anthony Dinnen, psychiatrist
Dr Dinnen examined the Applicant at the request of the Applicant’s solicitors on 25 May 2017 and provided a report dated 14 June 2017.[79] He diagnosed the Applicant with ‘Alcohol Use Disorder’.[80]
[79] Exhibit A4.
[80] Exhibit A4, 5.
The Applicant told Dr Dinnen that prior to joining the Army, he was a ‘very rare social drinker’, but ‘drank in Vietnam like everyone else’. He told Dr Dinnen that he ‘would drink every night at the Mess … [e]ven on a quiet night he would consume six cans’ although ‘he wasn’t able to drink when deployed to a fire support base.’[81] The Applicant told Dr Dinnen that since returning from Vietnam ‘he has continued to drink at least at the same level as in Vietnam. He has at least six stubbies a day. There have not been any periods of abstinence. His drinking has become a habit.’[82] The Applicant told Dr Dinnen that his father, who died in 2004 at the age of 80 years, ‘would drink after work until the hotels closed at 6pm and was abusive when drunk’. The Applicant also told Dr Dinnen that his father had served in the Second World War in New Guinea.[83]
[81] Exhibit A4, 2
[82] Exhibit A4, 2
[83] Exhibit A4, 3.
Category 1A Stressor - ‘Life-threatening experience’

The evidence before the Tribunal is that the Applicant was not impacted in a clinically significant manner by his heavy drinking until many years following his return from operational service in Vietnam. The evidence is that his alcohol consumption increased markedly during his operational service, but this does not evidence ‘clinical impairment or distress’. There is no evidence that alcohol had a physical or psychological impact on the Applicant during his service or that he saw a medical practitioner for any medical conditions or concerns. The onset of clinical symptomatology associated with excessive alcohol consumption did not occur until 2007 when the Applicant consulted his general practitioner. Dr Huntsman diagnosed Alcohol Abuse Disorder in April 2009, almost 40 years after the completion of the Applicant’s operational service.
This finds support in the evidence of Dr Dinnen who, despite being of the view that the clinical onset of the alcohol use disorder was during the Applicant’s service, stated that at the end of the Applicant’s operational service it would have been unlikely that a clinical diagnosis could have been made of alcohol use disorder on the DSM-5 criteria:
I’m not examining the man in 1970. If I did I might have said to him, look, I think your drinking is excessive and I think you have to moderate it and monitor it and get some help to control it and that would be maybe without all the obvious criteria that you would want to see in DSM-5 but I would say that if he were to see a doctor at the end of his Vietnam service with that amount of alcohol consumption under those circumstances in a young man, the doctor would rightfully say to him, look, you may be developing a problem with your drinking.[129]
[129] Transcript of proceedings, 3 December 2018 p108.
The expert medical evidence supports a finding that the date of clinical onset of the Applicant’s alcohol use disorder was when Dr Huntsman diagnosed the condition in April 2009.
In relation to whether there was a ‘clinical worsening’ of alcohol use disorder this can only be established in circumstances where the symptoms of the condition were clinically present during service: Re Parotte and Repatriation Commission [2004] AATA 536. If the features, symptoms and manifestations of alcohol use disorder as defined in the SoP were not present during the Applicant’s service, there cannot have been a clinical worsening of this condition in this period.
(iii) within five years
Clause 6 of the SoP requires that the experience of a category 1A stressor event be within five years of the clinical onset or clinical worsening of the alcohol use disorder. The evidence is that the Applicant experienced life-threatening event(s) during his operational service in South Vietnam in 1971. As the evidence demonstrates that the date of clinical onset of the Applicant’s alcohol use disorder was in April 2009, the requirements of cl 6(b) and cl 6(h) of SoP No. 1 of 2009 are not satisfied.
Accordingly, the hypothesis raised by the Applicant is not a reasonable one as it is not consistent with the template found in SoP No. 1 of 2009.
It therefore follows that the Applicant has not satisfied the third step of the Deledio methodology.
As the Applicant does not satisfy one of the factors that must, as a minimum, be present for his hypothesis with respect to alcohol use disorder to be reasonable, the Tribunal cannot be satisfied that the hypothesis is reasonable.
Applying s 120(3) of the Act, and for the reasons set above, the Tribunal is satisfied on the whole of the material before it there is no reasonable hypothesis raised to connect the Applicant’s alcohol use disorder with his service. Accordingly there is no sufficient ground for making a determination that the Applicant’s alcohol use disorder is war-caused.
Hypertension
Clause 6 of SoP No. 63 of 2013 provides:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service is:
(a)…
(b)consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension; or
(c)…
The SoP requires the material that raises the hypothesis includes the following essential elements:
(i)Consuming an average of at least 300 grams of alcohol per week
(ii)For at least six months before the clinical onset of hypertension
The evidence before the Tribunal is that the Applicant consulted Dr Rae at the Queen Street Medical Centre on 4 September 2007 and his blood pressure was recorded as high and this continued through 2008.[130] The parties agree that the date of clinical onset of the Applicant’s hypertension is 4 September 2007.
[130] Exhibit R2, 24-26.
In relation to the amount of alcohol consumed by the Applicant six months before the clinical onset of the hypertension, the evidence is that he was consuming alcohol on at least five or six days a week and he would consume at least four drinks per day. He would drink stubbies of full strength beer and occasionally wine with dinner and sometimes a spirit to finish off. The Applicant’s evidence is that his reference to ‘drinks’ in 2007 was to actual drinks rather than standard drinks.
The Standard Drinks Guide on the Australian Government Department of Health website provides that one 375ml bottle or can of full strength beer is equivalent to 1.4 standard drinks.[131]
[131] Exhibit A7.
The Respondent contended that the evidence demonstrates that the Applicant was consuming 260 grams of alcohol in 2007 on the assumption he was drinking four standard drinks on five days of the week and six standard drinks on one day per week. The Applicant’s evidence is that in 2007 he was consuming at least 300 grams of alcohol per week.[132] His evidence is that his references to ‘drinks’ is actual drinks rather than standard drinks.
[132] Exhibit A1, paragraph 10.
The evidence supports a finding that in 2007 the Applicant was consuming in excess of 300 grams of alcohol per week. Assuming the Applicant was consuming four drinks a day, five days a week, and six drinks one day a week, and these drinks were stubbies and/or cans, this is a total of 26 drinks per week, which is the equivalent of 36.4 standard drinks or 364 grams of alcohol per week.
On the basis that the Applicant was consuming more than 360 grams of alcohol per week in 2007, it can be accepted that the Applicant was consuming an average of at least 300 grams of alcohol per week in the six months before the clinical onset of hypertension. The requirements of cl 6(b) of SoP No. 63 of 2013 are therefore satisfied.
‘Related to’ the service
Clause 5 requires that at least one of the factors in cl 6 must be ‘related to’ the relevant service rendered by the veteran. As previously noted, s 196C(14)(a) provides that a factor is related to service rendered by a person if ‘it resulted from an occurrence that happened while the person was rendering that service.’
This requires consideration of whether the Applicant’s consumption of an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension ‘resulted from an occurrence that happened’ during his service. There is no requirement that the Applicant experienced a category 1A stressor.
The medical experts agreed that alcohol use disorder is multifactorial. Dr Dinnen stated that in his opinion genetic factors alone cannot explain the condition and that environmental factors are important. Dr Smith’s opinion is that individuals who are vulnerable from a genetic point of view are at greater risk of developing alcohol dependence. He considered that the evidence of the Applicant’s father’s alcohol abuse indicated a strong genetic contribution to the Applicant’s alcohol use disorder.
The evidence before supports a finding that a mix of environmental and genetic factors contributed to the Applicant’s alcohol use disorder. Amongst the environmental factors that contributed to the Applicant’s condition are the stressful environment of being in a war zone and the drinking culture prevalent in the Army during the Applicant’s operational service in Vietnam. The evidence supports a finding that the Applicant’s consumption of an average of at least 300 grams of alcohol per week in the six months before the clinical onset of hypertension ‘resulted from an occurrence that happened’ during his service.
Accordingly, the hypothesis raised by the Applicant is a reasonable one as it is consistent with the template found in SoP No. 63 of 2013.
It therefore follows that the Applicant has satisfied the third step of the Deledio methodology.

(d) Can the Tribunal be satisfied beyond a reasonable doubt that the Applicant’s hypertension was not war-caused?

Having dealt with the requirements of s 120(3), the Tribunal is now required to consider s 120(1). This subsection requires that the Commission shall determine that injury, disease or death was war-caused ‘unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.’
The task required of the Tribunal at this stage was explained by Mason CJ, Deane and McHugh JJ in Bushell at 416:
The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.’
As such in order that the Applicant’s claim be rejected at this stage of the inquiry, the tribunal of fact must find that the facts necessary to support the hypothesis are disproved beyond reasonable doubt or that a fact contrary to the raised hypothesis, and which is fatal to it, has been proved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570 – 571.
Beyond reasonable doubt
The term ‘beyond reasonable doubt’ carries with it the criminal law standard of proof. The policy rationale for the adoption of the criminal standard was explained by Murphy J in Repatriation Commission v Law (1981) 147 CLR 635 at 638 – 639:
In ancient and modern civilizations the treatment of former soldiers and sailors has been an important social issue. Historically the tendency has been to discard them and ignore the physical, social or economic damage to them by military service. The Australian solution to the problem of ensuring that the costs of war-related loses were borne by society rather than fall on the injured persons or their dependents was the adoption (along with other measures) of the ‘onus of proof’ section in war veterans legislation which requires the Commonwealth or its agency to disprove a claim rather than to require the claimant to prove it. It has been obvious that this remedial section would result and has resulted in many claims being allowed which in truth were not well-founded. This was the price of ensuring that no valid claim was rejected because of insufficiency of proof.
Factual findings
It remains for the Tribunal to make findings of fact in relation to the Applicant’s hypothesis with respect to his hypertension condition. The Tribunal makes the following factual findings:
(a)The Applicant rendered operational service whilst stationed in South Vietnam from 17 February 1971 to 7 October 1971;
(b)During his operational service the Applicant was exposed to the stresses and threats to life of being in a war zone and to the strong drinking culture that was prevalent in the Army.
(c)During his operational service the Applicant’s alcohol consumption was on average six to eight cans of beer per day and up to a dozen drinks per day during periods of leave;
(d)Upon return home the Applicant maintained his consumption of large quantities of alcohol and was consuming on average at least 300 grams of alcohol per week;
(e)The Applicant was diagnosed with hypertension in September 2007.
There are no grounds for a finding that either one or more of the facts necessary to support the Applicant’s hypothesis with respect to hypertension have been disproved beyond reasonable doubt, or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.
Accordingly, the Tribunal is not satisfied beyond reasonable doubt that there are sufficient grounds for making a determination that the Applicant’s hypertension is not war-caused.
DECISION
For the reasons set out above, the Tribunal:
(d)affirms the Reviewable Decision in relation to the alcohol use disorder;
(e)sets aside the Reviewable Decision in relation to the hypertension; and
(f)makes a decision in substitution that the Applicant suffers from hypertension that was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[SGD].............................................
Associate
Dated: 16 April 2019

Date(s) of hearing: 3 and 4 December 2018

Counsel for the Applicant: T Saunders

Solicitors for the Respondent: A Bortone, Sparke Helmore

Date(s) of hearing:	3 and 4 December 2018
Counsel for the Applicant:	T Saunders
Solicitors for the Respondent:	A Bortone, Sparke Helmore