Dowd and Repatriation Commission
[2004] AATA 437
•4 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 437
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/166
VETERANS’ APPEALS DIVISION )
Re GRAHAM DOWD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M Carstairs, Member Date4 May 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s hypertension is war-caused and defence-caused with effect from 21 March 2000. The Tribunal therefore remits the matter to the respondent to calculate the rate of rate of pension payable.
.........(Sgd) M J Carstairs........
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – hypertension - whether condition is war caused
Veterans’ Entitlements Act 1986
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192.
McKenna v Repatriation Commission (1999) 86 FCR 144REASONS FOR DECISION
4 May 2004 Ms M Carstairs, Member 1. This is an application by Graeme Dowd (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB), affirming a decision made by the Repatriation Commission (the respondent), to reject the applicant’s claim that his hypertension was attributable to his war or defence service.
2. At the hearing the applicant was represented by Mr P O’Neill of counsel instructed by Files Stibbe and Associates solicitors. Mr M Smith, a departmental advocate, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 numbered T1-T6 as well as exhibits marked A1-A6 for the applicant and R1-R7 for the respondent.
BACKGROUND
4. The applicant is aged fifty-four. He served in the Australian Army as a surveyor from 17 January 1968 to 20 January 1988 including a period of service in Vietnam from 8 October 1969 to 8 October 1970, which is operational service under the Veterans’ Entitlements Act1986 (the Act). His service from 7 December 1972 to 20 January 1988 is eligible defence service under the Act.
5. In Vietnam, the applicant was posted as a sapper to A Section, 1st Topographical Survey Troop at the Army base at Nui Dat. He was discharged in 1988 having reached the rank of sergeant. Since 1988 he has worked in his own business as a cartographer.
6. The applicant made a claim on the respondent on 21 June 2000 to have hypertension accepted as attributable to his service. The respondent rejected the claim, as did the VRB. The applicant sought review with this Tribunal on 23 February 2001. He has since made a claim upon the respondent to have alcohol dependence/abuse accepted as attributable to war or defence service; however this claim has not been reviewed by the VRB and, therefore, is not before the Tribunal.
EVIDENCE
7. In a written statement headed Vietnam – October 1969 to October 1970 (undated) (Exhibit A5) the applicant set out three incidents (the “stressful events”) which he said occurred during his service in Vietnam:
“During my tour of Nui Dat, Vietnam, I was required a few times to photograph (in the absence of our unit photographer), P.O.W's held by our Military Police P.O.W. Camp. These P.O.W.'s were brought in after various field operations. They were required to be photographed for record purposes. Apart from the pure filth looking of these people, often they were covered in injuries.
Amongst the photographs I was required to take were photographs of P.O.W's ‘fatal’ with limbs missing, shrapnel or bullet wounds. The memories and sight were not very nice. the ‘photography incident’)
During my tour of Vietnam there were at least four suicides by Australian troops in Nui Dat. I remember hearing the explosions or shots. Nobody was allowed near the scenes, however I remember going past the area a day or so later and seeing pieces of body tissue and blood stains on vegetation around the area. (the ‘deaths’ incidents’)
Another incident that shook me up was myself and another sapper from the unit was carrying out survey work on two civilian projects in the bush along a road. We were supposed to be supported by a platoon of South Vietnamese soldiers however shots were fired at us just above our heads. Our support was nowhere to be seen so we fled the area by vehicle as quick as hell. This was a close situation and haunted me for some time 'as I was a surveyor and not an infantry man.” (the ‘live fire incident’)
8. In three other statements (Exhibit A2, A3 and A4), the applicant elaborated further on these incidents. In oral evidence the applicant said that, as a sapper in the Survey Troop, he was a non-combatant soldier but undertook field duties in Vietnam for tactical mapping and other operations. He said that his recollection of the live fire incident was that he and another person, who he now accepted was his supervising officer, Sergeant Martin Sawyer, were undertaking field duties that involved sighting levels. As they were outside the wire they were assigned protective cover from South Vietnamese soldiers. When they were fired upon, he said there were three or four shots some of which whistled overhead in close proximity. He said that he went to ground and his recollection was that they left the area promptly, not finishing the job. The applicant said this was the first time he had come under fire and that he was only twenty years of age whereas Sergeant Sawyer was a soldier with some twelve years experience.
9. The applicant said that before he went to Vietnam he had little exposure to alcohol as he had not long turned eighteen. He explained that in Vietnam service personnel were limited to two cans of beer per day although he drank more heavily when on leave. He said that the tropical climate in Vietnam encouraged drinking and he took opportunities to trade for the rations of others. He said that during his tour he made two visits to American bases in Vietnam where there was no rationing of alcohol. He said that he was constantly on edge when in Vietnam and drank to relieve his stress. In relation to the photography incident (Exhibit A2) he stated:
“I recall experiencing feelings of helplessness and fear. I was horrified by what confronted me, and that which was required of me. The visions confronting me amplified the terror of the war around me, and caused me severe distress.”
10. The applicant said that when he returned from Vietnam he was made a corporal within six months and quickly reached the rank of sergeant. He said that as a sergeant he was expected to attend mess functions and non-drinking was frowned upon. He referred to “kangaroo courts” at which fines were imposed for under-consumption of alcohol. He said that he was a heavy drinker by the time of his promotion to sergeant. He referred to drinking three to four pots of beer during lunch, and two to three pots at the end of the day when work issues were discussed. He said that this was followed by half a dozen stubbies at home each night. The applicant said that when he was posted to New Guinea from 1977 to 1979 he undertook survey work for weeks at a time in the mountains, and would consume ouzo and coconut milk. He said that when he left the army in 1988, he continued to drink heavily, at social clubs, and drank cask wine and ouzo at home. He estimated that he consumed two and a half litres of wine per day, plus about five glasses of ouzo. He said that he remains unable to reduce his consumption of alcohol, despite his doctor’s urgings to do so. He said that without alcohol he would not be able to sleep at night.
11. The applicant was extensively cross-examined about the stressful events. In regard to the photography incident and the deaths incidents, his answers showed little recall of detail. In regard to the live fire incident, he stated that he had recalled more after reading the research reports and now accepted that the other person with him was Sergeant Sawyer, not another sapper as he had originally thought. He acknowledged in cross-examination that the gun fire may have been from the South Vietnamese soldiers whose task was to protect them, but he said, they never found out. He pointed out that he was inexperienced, was only twenty years of age, and had not come under live fire before.
12. In a medical report dated 19 June 2000 (T4), Dr E Flynn, general practitioner stated that the applicant has suffered primary hypertension since August 1998 , and further stated in a report dated 21 July 2000 (T4) with reference to conditions present prior to hypertension, that the applicant has suffered from alcohol dependence or abuse since 1969.
13. In a medical report dated 25 May 2002 (Exhibit A1), Mr L Hatzipetrou, psychologist, stated that the applicant described distressing incidents in Vietnam and that he did not abuse alcohol prior to Vietnam despite his family having a history of alcoholism. The applicant told him that he increased his consumption of alcohol during recreational leave in Vietnam and depended on alcohol to cope with anxiety and the stressful events. The applicant told Mr Hatzipetrou that he increased his consumption of alcohol when he became a sergeant and he told Mr Hatzipetrou that he had tremors and nausea if he abstained from alcohol. Mr Hatzipetrou considered that the applicant met six of the seven criteria for alcohol dependence as set out in the 4th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM IV”), and had maintained a consistent pattern of alcohol use over thirty years.
14. In a medical report dated 25 July 2002 (Exhibit R1), Dr N Prior, consultant psychiatrist, stated that the applicant told him that he had commenced consuming alcohol at the age of nineteen while on service in Vietnam. He referred to the stressful events as described by the applicant, as well as to his pattern of alcohol consumption in Vietnam and increased consumption when he was promoted to sergeant in 1974. Dr Prior stated:
“Presently he drinks on a daily basis consuming 3 litres of cask wine per day in addition to 6 units of spirits. He denies any blackouts but reports memory loss, withdrawal symptoms of insomnia, tolerance, excessive abuse despite knowing these ill effects, salience of drinking behaviour, unsuccessful attempts to cut down and rapid re-instatement when he does.”
15. Dr Prior concluded that the applicant suffered from the conditions of alcohol dependence syndrome, and adjustment disorder with mixed disturbance of emotions and conduct (chronic). Dr Prior considered that the conditions were related to service stressors, and that the applicant used alcohol maladaptively to deal with emotional distress. Dr Prior and Mr Hatzipetrou agreed that the applicant does not meet the criteria for post traumatic stress disorder.
16. Three research reports set out the investigations undertaken by the respondent into the stressful events identified by the applicant in his claim. The reports were those of Mr J Tillbrook dated 21 August 2002 (Exhibit R2) and 29 September 2002 (Exhibit R3), and a report prepared by Mr P Pearson dated 13 September 2003 (Exhibit R4). Both Mr Tillbrook and Mr Pearson gave oral evidence. The Tribunal heard oral evidence also from Mr R McMillan, Mr I Laurie, Mr M Sawyer and Mr D Collins, who served with the applicant in Vietnam and whose views had been sought when the claim was researched by the respondent. Mr Sawyer recalled being in the field with the applicant and one other soldier when their survey party was fired upon. He said that it never became clear who had fired the shots, although he thought it was likely to be the South Vietnamese soldiers.Mr Sawyer agreed that the shots passed close by; he recalled a single shot followed by two or three more. They all hit the ground after the first shot was fired (Exhibit R4).
CONSIDERATION OF THE ISSUES
17. In this matter the applicant has two period of service, a period of operational service and a period of eligible defence service. Different provisions of the Act apply to each period and each attracts a different standard of proof.
18. With regard to the period of operational service, s9 of the Act provides:
“(1) Subject to this section, 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:
(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;”
19. For operational service, s120(1) of the Act provides:
“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease;…
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.”
20. For claims relying on operational service made after 1994, the standard of proof provisions are affected by s120A in the following way:
“(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;
…
(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.”
21. Section 70(5) of the Act, which deals with periods of eligible defence service (here, 1972 to 1988) provides:
”(5) For the purposes of this Act,…an injury suffered…shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member…has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;…”
22. For claims made after 1994 relying on eligible defence service, it is necessary to apply any relevant Statement of Principles (“SoP”) which applies to the disease or injury claimed: s120B(1)(b) of the Act.
23. Thus, in determining whether the applicant’s hypertension was war‑caused the Tribunal must first consider all the material before it and decide whether that material points to a reasonable hypothesis linking the disease, through the existence of medical factors, to the circumstances of the particular service rendered by the applicant. For the eligible defence service, the Tribunal must determine whether the material before it raises a connection between the applicant's injury or disease and service: s120B(3). The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities connected with his service (s120B(3)(b)). The relationship to service for either period of service must be one of the relationships prescribed in s196B(14) of the Act:
“196B(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…”
24. In regard to either period of service the hypothesis raised, or the contention raised, by the applicant must fit within or be consistent with a factor set out in the applicable SoP. Otherwise the claim will fail.
25. The principles to be applied in cases where s120A applies (operational service) were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a series of four steps:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
26. Mr O’Neill noted that there was no dispute between the parties that the applicable SoP’s concerning hypertension, relating to both periods of service, were No 35 and 36 of 2003, (as amended by Instruments No 3 and 4 of 2004). Factor 5(b) of SoP No 35 provides:
“The factors 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 are:
…
(b) consuming an average of at least 200 grams (Instrument No 36 relating to defence service provides for 300grams) per week of alcohol which cannot be decreased to less than an average of 200 grams (300 grams for defence service) per week, at the time of the clinical onset of hypertension; …”
27. The amendments made by instrument No 3 of 2004 to Instrument No 35 of 2003, were as follows:
“…in paragraph 5, deleting factors (b) … and inserting …:
’(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol’…”
(The SoP relevant to the period of defence service was amended similarly by Instrument No 4 of 2004, the quantities alcohol reading 300 grams per week).
28. The SoP's in force at the time of the claim, and when the matter was reviewed by the VRB in January 2001, were Instruments No 25 and 26 of 1999, (later amended by Instruments No 31 and 32 of 2001). The Tribunal must apply the SoP in force at the time of the Tribunal’s decision (Repatriation Commission v Gorton (2001) 110 FCR 321).
29. The Tribunal notes that there were several significant changes made to the SoP's for hypertension in the period since the applicant claimed to have the condition attributed to his service. When the applicant claimed in 2000, the applicable SoP’s for hypertension were Nos 25 and 26 of 1999. These provided as follows :
“(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams (300grams) per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension;”
(the highlighted higher level of alcohol consumption being the amounts for defence service).
30. Clause 8 in each of SoP No 25 and 26 of 1999 then defined the meaning of the terms alcohol dependence and alcohol abuse, using terms similar to definitions from SoP’s for the medical condition of alcohol abuse or dependence. The Tribunal was also referred to the SoP’s for alcohol dependence or alcohol abuse (Nos 76 and 77 of 1998), however for the reasons set out below, the Tribunal did not consider it was necessary to apply these SoP’s to reach a decision on the applicant’s claim for hypertension.
31. Mr O’Neill submitted that the applicant was diagnosed with hypertension by his general practitioner in 1997 and has been on medication since then. He referred to Dr Flynn’s evidence that the onset of alcohol dependence or abuse was 1969. He submitted that the reports of Mr Hatzipetrou and Dr Prior confirm the diagnosis of alcohol dependence, and connect the onset of the condition to stressors occurring during the applicant’s service in Vietnam. He referred to Dr Flynn’s report that the clinical onset was 1969. Mr O’Neill submitted that the Tribunal should take into account that the applicant was only nineteen when he served in Vietnam, and that the stressful events would have been confronting to a young and inexperienced soldier. He submitted also that the evidence indicated that the applicant continued to drink heavily after his return to Australia and more particularly after he was promoted to sergeant in 1974.
32. With regard to the stressful events, Mr O’Neill submitted that despite the extensive historical research by the respondent into the applicant’s claims, the research was deficient where it relied on the recollections of soldiers who did not arrive in Vietnam until well after the applicant and at a time later than the applicant remembered the events occurring, which was in the earlier part of his period in Vietnam. He noted however that the evidence of Mr Sawyer supported the occurrence of the live fire incident and said that the applicant’s evidence generally was not disproved.
33. Mr Smith conceded that the applicant suffered from alcohol dependence since his Vietnam service. He agreed that the onset of hypertension was 1998. He also conceded that the alcohol consumed by the applicant met the factor in SoP No 35 of 2003 of consuming an average of at least 200 grams per week of alcohol. However he said that the consumption of alcohol could not be connected to the applicant’s operational service. He submitted that in considering the hypothesis raised by the applicant the Tribunal must apply the SoP for alcohol abuse or dependence. He said that factor 5(b) of the SoP for hypertension required a diagnosis of alcohol abuse or dependence and he submitted it then followed that the stressful events relied upon must be tested against the definition of experiencing a severe stressor in SoP No 76 of 1998 for alcohol abuse or dependence.
34. Both parties made extensive submissions in regard to the stressful events and whether they would constitute experiencing a severe stressor. However the claim for alcohol dependence or abuse was not before the Tribunal. The current SoP for hypertension which the Tribunal must apply (Gorton), does not require a diagnosis of alcohol dependence or abuse. The current SoP requires only the consumption of a minimum quantity of alcohol, not a diagnosis of a medical condition, regardless of the fact that such quantities over the time involved here imply the presence of the medical condition. Although there are sub-hypotheses within the overall hypothesis raised by the applicant, this is not a case which requires that the hypothesis is upheld through more than one SoP (McKenna v Repatriation Commission (1999) 86 FCR 144),.
35. There was no dispute between the parties that the applicant suffers from alcohol abuse disorder. Both agree that this condition dates from his Vietnam service. Both agree that his hypertension dates from 1998. The issue of whether a claimed injury or disease exists is decided to the reasonable satisfaction of the decision maker in accordance with s120(4) of the Act. Based on the evidence of Dr Prior, Dr Flynn, and Mr Hatzipetrou, the Tribunal is reasonably satisfied that the applicant suffers from alcohol dependence or abuse, and has done so since 1969. The Tribunal accepts Dr Flynn’s evidence that the applicant has suffered hypertension since 1998.
36. In respect of the third step as set out in Deledio, for a hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. The hypothesis raised is that the applicant’s consumption of alcohol was related to his operational service in Vietnam as a reaction to the stressful events he experienced there as a young serviceman, leading to him seeking comfort and solace from alcohol. He then became dependent upon alcohol which contributed to the onset of his hypertension.
37. The evidence taken as a whole points to the hypothesis. The applicant gave evidence of being essentially a non-drinker when he went to Vietnam, consistently with his age of just over eighteen on enlistment. His evidence was that he was an inexperienced, non-combatant soldier who was deeply affected by his experiences in Vietnam. His evidence on the live fire incident was corroborated by Mr Sawyer. Mr Sawyer may have perceived the incident differently, but he was a much more senior and experienced soldier than was the applicant. The evidence on other incidents, extensive as was the research undertaken in regard to them, was far from clear. The applicant was giving as good an account of events that happened a long time ago, and struggled with memory and recall. The Tribunal takes into account the applicant’s evidence that he found his Vietnam experience stressful and that he drank to ease the stress he found himself under.
38. The evidence points to the applicant continuing to consume alcohol on an ongoing basis, at levels that exceeded the amounts set in the factor at 5(b) of SoP No 35 of 2003 (as amended), that is, consuming an average of well over 200 grams per week. The Tribunal notes that all the SoP’s that arise for consideration since the time of the applicant’s claim have defined the measure of alcohol consumed as utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink. There was no contrary evidence to the continued pattern at pathological levels of intake right up to the time of the onset of hypertension. Thus the hypothesis fits the template in the SoP and the hypothesis is therefore reasonable.
39. Under s120(1) the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved, inconsistent with those raised by the hypothesis. The standard of proof required by s120(1) is that the Tribunal is satisfied beyond reasonable doubt of those matters. The Tribunal finds that the applicant commenced drinking alcohol while on service in Vietnam in response to his experience of stress on service. However, the Tribunal accepts that there were a number of stressful events which he experienced as a young soldier from a non-combatant background. Despite inconsistencies in aspects of the evidence about the incidents, his evidence in regard to the live fire incident was supported on relevant points by Mr Sawyer. The Tribunal accepts the applicant’s evidence that he drank to deal with the stress of his Vietnam service. Other evidence supported the view that he was a drinker in Vietnam. The Tribunal finds that the applicant developed an alcohol dependence that remained with him through his service from 1970 until 1988 and continued after the end of that service.
40. The applicant’s evidence about his pattern of drinking was supported by the medical evidence. The Tribunal accepts the evidence of Mr Hatzipetrou and Dr Prior that the applicant’s alcoholism was chronic and problematic and that the applicant has little insight into the need to reduce his consumption. The Tribunal is satisfied that the applicant was consuming quantities that exceeded 200 grams per week within the six month period when hypertension was diagnosed in 1998.
41. The Tribunal was not satisfied that any facts necessary to support the hypothesis were disproved beyond reasonable doubt nor was the Tribunal satisfied beyond reasonable doubt of the existence of other facts inconsistent with the hypothesis that disprove the hypothesis. Therefore the applicant’s claim to have hypertension attributed to his war service within the meaning of s9 of the Act Tribunal succeeds.
42. Further, the Tribunal considered that the evidence taken as a whole pointed to the applicant meeting factor 5(b) of SoP No 36 of 2003 (as amended). In view of these findings, it is sufficient to refer in general terms to the claim as it relates to the period of eligible defence service. Having found that the applicant commenced a regular pattern of drinking on service in Vietnam, which was related to that service for the reasons set out, the applicant continued to drink heavily and the pattern became entrenched when he became a sergeant and had greater pressure to socialise in the mess. The Tribunal accepts his evidence about those pressures and considers that the relationship to service was made out. His evidence about his alcohol consumption when in the field in New Guinea also lends support during this period of service. The evidence pointed to him consuming alcohol from the time of his Vietnam service, increasing the quantities during eligible defence service and sustaining an alcohol intake above 300 grams per week continuously from his service and at the onset of hypertension in 1998. He continues those levels of alcohol consumption now.
DECISION
43. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s hypertension is war-caused and defence-caused with effect from 21 March 2000. The Tribunal therefore remits the matter to the respondent to calculate the rate of rate of pension payable.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member
Signed: S Oliver
Associate
Dates of Hearing 17 and 18 March 2004
Date of Decision 4 May 2004
Counsel for the Applicant Mr O'Neill
Solicitor for the Applicant Files Stibbe and Associates
For the Respondent Mr Smith, Departmental Advocate
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