Elson and Repatriation Commission - [2002] AATA 1141

DECISION AND REASONS FOR DECISION [2002] AATA 1141

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/554

VETERANS' APPEALS   DIVISION     )
           Re      Jean Elson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date6 November 2002
PlaceSydney

Decision The Tribunal determines that the decision under review is affirmed.

[SGD]Dr J D Campbell Member
CATCHWORDS7
VETERANS' ENTITLEMENTS – application for widow's pension – whether death of veteran was war-caused – malignant neoplasm of the colorectum – alcohol dependence or alcohol abuse – reasonable hypotheses – consuming 250 kgs of alcohol in a 25 year period within 40 years immediately before clinical onset of disease – severe stressor

Veterans' Entitlement Act 1986 – sections 8, 119, 120(1), 120(3), 120A, 120B

Statement of Principles ("SoP") Instrument No 58 of 2002, concerning malignant neoplasm of the colorectum
Statement of Principles ("SoP") Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 59 ALD 315
Repatriation Commission v Hughes (1990) 13 AAR 34
Bull v Repatriation Commission (2001) 66 ALD 271

REASONS FOR DECISION

6 November 2002 Dr J D Campbell, Member

In this matter, Mrs J Elson ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 29 January 1999 that determined that the death of her husband, Mr David Elson ("the veteran") was not related to service (T2). This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 13 March 2001 (T9).
A hearing was held before the Tribunal in Sydney on 2 September 2002 at which the Applicant presented oral evidence. The Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs.
The following material was placed into evidence before the Tribunal:
Exhibit           Description    Date
T1-T12 pp1-55 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
A1      Applicant's Statement of Facts and Contentions          28 August 2002
A2      Statement of Jean Elson    12 July 2001
A3      Report from Dr Dinnen      20 August 2001
A4      Report from Brendan O'Keefe      26 July 2002
A5      Photo of Sergeant Elson and a Corporal in South Vietnam
A6      Photo of Mr Elson outside his tent
A7      Photo of a truck on the side of the road
A8      Photo of the truck
A9      Photo of bonded Vietnamese
R1      Respondent's Statement of Facts and Contentions     29 August 2002
R2      Medical records from Macarthur Health Services         Various dates
R3      Report from Writeway Research Service 13 December 2001
R4      Transcript of VRB hearing 13 March 2001
R5      Letter from P Godwin to Dr R Venkatersan      23 and 29 April 2002
issues
The relevant issue in this matter is whether the death of the veteran was war-caused.
legislation
The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 8, 119, 120(1), 120(3), 120A, 120B.
background
The Applicant lodged a claim on 27 January 1999 with the Respondent seeking that the death of her late husband ("the veteran") be accepted as war-caused (T4).
The late veteran is recorded as undertaking the following service (T6):
·operational service in Far East Strategic Reserve from 11 October 1957 to 18 September 1959;
·operational service in Vietnam from 15 March 1968 to 26 March 1969;
·eligible defence service from 7 December 1972 to 23 September 1975.
The late veteran died on 1 July 1998, the cause of death being certified on the death certificate as metastatic colon carcinoma (T5).
In her claim the Applicant stated that the late veteran commenced smoking while serving with the British forces and that he smoked about ten cigarettes a day until his service in Vietnam. The Applicant described two incidents, both of which had occurred in Vietnam, and which had been told to her by the late veteran, namely (T5, p28):

while in Vietnam he was a driver for senior officers. On one occasion when he was driving the Brigadier, the vehicle in front of them was blown up and all the occupants were killed, and he and the Brigadier narrowly escaped serious injury;
shortly afterwards they came under sniper attack and a friend standing next to him was killed.

The Applicant stated that the late veteran was a light smoker and a social drinker prior to his Vietnam service. She further described the following relevant histories, in relation to the late veteran's smoking and alcohol consumption (T5, p28):
"[the late veteran's] smoking habit increased to more than a packet a day after this event and this habit continued at this level until 1988 when he gave up smoking.
He told me that his drinking habit increased dramatically while he was in Vietnam and this habit continued up until his death. He said he would have about half a dozen drinks every day and he was drinking this amount when we married in 1979. He said that on his return to Australia from Vietnam he became the President of the Sergeants [sic] Mess and continued in that office until his discharge and in this role his drinking habit was often in excess of 6 drinks a day".
The Respondent refused the Applicant's claim on 29 January 1999, stating that while there was a history of alcohol consumption of at least 250kg within the 25-year period before the clinical onset of malignant neoplasm of the colon, such consumption was not related to operational service. Further, the Respondent was unable to relate the alcohol consumption to any illness or injury that may have occurred during operational service, and in this category the Respondent included alcohol abuse, alcohol dependence, part of a psychiatric condition or self-medication for a medical condition. The Respondent concluded that a causal link between eligible service and the late veteran's alcohol consumption could not be established (T6).
The Respondent also considered that the late veteran's smoking history did not reveal a 15 pack year smoking history which occurred more than 30 years before the clinical onset of malignant neoplasm of the colon. In view of such a history, the Respondent found that the late veteran's malignant neoplasm of the colon could not be related to either his operational or eligible periods of service (T6).
On 26 April 1999 the Applicant further detailed the circumstances of the late veteran's second incident in Vietnam (T7):
"He told me that one evening he was sitting in his tent while his friend was standing in front of him drinking a beer when a sniper shot his friend dead in front of him".
As a consequence of his service in Vietnam and these two incidents, the Applicant contends that the late veteran's "war service contributed to depression and stress and increased his smoking and drinking habits" (T7, p34).
On 13 March 2001, the VRB affirmed the decision that the veteran's death was not causally related to his service, as the VRB was "unable to conclude what part, if any, of the veteran's drinking habit, was attributable to his Vietnam service" (T9, p43).
applicant's evidence
In a statement dated 12 July 2001 (Exhibit A2), Mrs Elson stated that she met her late husband in 1979, several years after he returned from service. Mrs Elson indicated that she knew little about his life prior to service.
At the time of meeting her late husband in 1979, she considered that he had an average drinking habit, consuming several beers and maybe some scotch every night. This habit, in her view, did not change very much over the years they were married. Mrs Elson stated that her husband was then working at the Ex-servicemen's club and he would have a few drinks with his mates when they had finished work for the day. How much this amounted to was a matter of which Mrs Elson was unsure.
Mrs Elson, in her statement, indicated that her husband had told her several things about his service which he found to be stressful, and that there were times that he became upset when telling her about certain things. Mrs Elson referred to the following specific incidents/experiences:

the late veteran's feelings of responsibility for the young national servicemen in Vietnam and his concern for their safety and survival;
in driving senior officers around in Vietnam he was concerned at whether he was going to be shot at or whether he would drive over a mine;
when sitting in a tent talking to a fellow serviceman, a sniper fired at the tent, with the bullet hitting the other person.

In oral evidence Mrs Elson stated that her late husband had served in the RAF in World War II and used to have a couple of drinks each night while so serving. Mrs Elson stated that: she married her husband in 1982; in 1983 she and her husband moved to Sydney to care for aged parents in Merrylands for a period of twelve months; they then moved to Esk in Ipswich where they lived for twelve months; they then lived in a retirement village at Buderim for approximately ten years, where the late veteran used to drive the village bus for two days each week; and they next moved to Camden where they lived for twelve months prior to moving to Culburra. Mrs Elson stated that in 1994 they separated, with the late veteran returning to live and work in the Camden area, and she to Bomaderry, maintaining intermittent contact with each other thereafter.
Mrs Elson stated that the late veteran's drinking habits varied little after the marriage; that she did know why he continued to drink; that at Buderim the late veteran would have one drink at lunch time and three in the evening; that he was essentially a home drinker and consumed on average three to six drinks a day; and that this did not change during the time of their marriage, apart from a short period in which her late husband increased his consumption of alcohol following the death of his son from an accident in 1988.
other evidence
dr dinnen
Dr Dinnen, a consultant psychiatrist, in his report dated 20 August 2001, stated that Mrs Elson told him (Exhibit A3):
"Through the years however he drank in moderation, something like four or five drinks a day. It was never obsessive or to the point that it worried her, and he did not appear to be affected by it in any adverse fashion".
Dr Dinnen detailed the following opinion (Exhibit A3):
"There seems little doubt that this late veteran had considerable service in the military both in the United Kingdom and with the Australian forces, and his service in Vietnam in particular was stressful and hazardous. What is not so easy to establish, with the benefit of hindsight and as much information as has been provided, is the extent to which his drinking either increased or was maintained as a consequence of his operational service. There is of course no information within any of these documents about the veterans' service with the Far East Strategic Reserve from October 1957 to September 1959. This was a campaign which often involved indirect enemy contact, and of course was a theatre of war, regardless of the limited enemy contact which generally was experienced by those who served in it.
All I can suggest, on the basis of this information, is that the patient is more likely than not to have maintained his use of alcohol through the years consequent to his service in Vietnam. That service would be considered sufficient to qualify as experiencing a stressful event or experiencing a severe stressor. The diagnosis of psychoactive substance dependence according to the relevant statement of principles, instrument no.5 of 1994 or no.77 of 1998 is therefore satisfied.
It is evident that a calculation of the quantities of alcohol and cigarettes consumed through the years is not within my specialist province as an expert and is a calculation which can be performed by any layman, and I will leave that part of the claim to you. I see no reason to discount the widow's history provided to me that her husband drank something like five average drinks per day and at times more, during the years that she knew him, and certainly as much as that prior to her involvement with him, according to the statement by Mr King. Please let me know if you know if you [sic] need any further comment."
mr barry king
In a statement dated 18 November 2000, Mr King detailed his experiences of service in the military police in Vietnam, their location and the nature of their work and social activities. Mr King drew attention to the considerable amounts of alcohol consumed on a daily basis in Vietnam, and that upon return to Australia he served with the late veteran at Ingleburn, where they continued to drink "too much to the detriment of family, health and in many cases, career" (T9, p46).
dr dean
In an open letter dated 10 August 2000, Dr Dean, a consulting psychologist, stated that he had known the late veteran both socially and professionally for 15 years. He stated that the late veteran had told him that he was a social drinker prior to Vietnam but after returning from Vietnam his personality changed a great deal, and that he had been labelled by family members and friends as being an arrogant and aggressive person while talking and socialising with them. Dr Dean further stated that the late veteran had told him that he had nightmares, flashbacks and many times panic attacks, when "thinking about his times spent in Vietnam. He began to drink and smoke heavily to forget and overcome his nervousness and anxiety" (T9, p47).
dr venkatersan
Dr Venkatersan, the late veteran's treating general practitioner from 1995 - 1998, stated in a report dated 29 April 2002 (Exhibit R5), that:

symptoms of the late veteran's malignant carcinoma of the colon were present for two to three months prior to diagnosis; and
the late veteran's alcohol intake during the period he was looking after him was minimal, and to the best of his knowledge this was the late veteran's pattern of alcohol consumption in the past.

macarthur health service

In medical records obtained from the Macarthur Health Services relating to the late veteran, the following notations were made in relation to the late veteran's consumption of alcohol (Exhibit R2):
Page 71 – "no" in relation to drinking of alcohol, on 15 June 1998; and
Page 30 – "never drink" in relation to consumption of alcohol.
mr b o'keefe
In a report dated 26 July 2002, Mr O'Keefe, having detailed the late veteran's service history, made the following conclusion (Exhibit A4):
"During Mr Elson's military service in Malaya in the 1950s, it is highly improbable that he ever came into contact with enemy troops and his tour of duty is unlikely to have been stressful, at least on account of any danger he faced from enemy forces. Alcohol and cigarettes were readily available in Malaya, but soldiers in general did not indulge in excessive consumption of alcohol. It is not clear whether or not the latter statement could be applied to Mr Elson. The use of cigarettes and other tobacco products may have been very common, but no information was available about Mr Elson's use of these products.
In Vietnam, it is possible that Mr Elson was exposed to potentially dangerous situations, notably on road escort duty, manning checkpoints and while serving at fire support bases (if he visited any of these). No specific incidents in which Mr Elson was in hostile contact with enemy forces could be identified either from the records or from the information provided by former colleagues in his unit. The consumption of alcohol by Australian soldiers in Vietnam was very high and, given the remarks made by Mr Proctor, it seems likely that Mr Elson did consume large amounts of alcohol while he was off duty. His position as a senior NCO, a military policeman and a base camp soldier for at least part of the time may have contributed to this excessive intake. The use of cigarettes and other tobacco products by Australian soldiers in Vietnam was also very high and, while it seems very likely that Mr Elson was a smoker in Vietnam, no particular evidence could be gleaned about the scale of his use."
lt. col. h conant
In a report dated 13 December 2001, Lieutenant Colonel Conant, Write Way Research Service, detailed a history of the late veteran's service and the methodology used in undertaking his research. The following summarises Lt Col Conant's endeavours (Exhibit R3):
"a. Brigadier Pearson was the 1st ATF Commander.
b. The Provost did do VIP Escort duties.
c.Although the Brigadier travelled extensively outside Nui Dat by helicopter it was very rare for him to travel by road. If he did, in addition to moving about inside the TF Base, he had his own Driver.
d.No record has been identified where all the occupants of a vehicle were killed by a mine blast.
e.No record has been found of an incident inside Nui Dat where a soldier was killed by a stray bullet."

submissions

applicant

Counsel for the Applicant submitted that the late veteran's alcohol habit was materially contributed to by his service in Vietnam. In so stating, Counsel submitted that there was little known about the late veteran's alcohol consumption prior to his service in Vietnam, apart from drinking two drinks a night, as a social drinker during his service with the RAF in the latter stages of World War II and thereafter. There is, it was submitted, some evidence that the late veteran increased his alcohol intake to some six drinks a day while serving in Vietnam, where alcohol was readily available, cheap, and consumed as an inevitable part of the socialising process. It was submitted that the late veteran experienced particular, stressful, issues during his service in Vietnam, which in turn led to an increased level of alcohol consumption. This continued after his return from Vietnam, it was submitted, where the late veteran continued to consume at a rate of an average six drinks a day.
Counsel submitted that the late veteran's service in Vietnam caused the late veteran to increase the quantity of alcohol consumed and that this increased level of consumption continued post his Vietnam service and post his military service. This, in Counsel's contention, constitutes a material aggravation in terms of quantity, to the amount of alcohol consumed by the late veteran. In support of his contention, Counsel cited the matter of Repatriation Commission v Hughes (1990) 13 AAR 34, where at 38 Davies J stated:
"The connection will be pointed to by the facts of the particular serviceman's case. Proof as to precisely how and in what circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient."
respondent
The Respondent submitted that the late veteran did not experience any specific service related stressor during any period of eligible service; that even if such a stressor did occur on service - there is no evidence linking such a stressor to excessive drinking; that there is no reliable evidence that the late veteran suffered from alcohol abuse or dependence, or in the alternative, that even in the presence of alcohol abuse or dependence, there is no reliable evidence linking such a condition to the veteran's eligible service; that there is no reliable evidence that the late veteran's alcohol consumption meets the quantity prescribed in factor 5(c) of Statement of Principles ("SoP") Instrument No 58 of 2002 concerning malignant neoplasm of the colon.
In summary, the Respondent submitted that there is extremely limited material on the late veteran's alcohol consumption between his commencement of service in the RAF and his service in Vietnam. Further, the material relating to the late veteran's Vietnam service and thereafter appears to be confusing and contradictory. As such, the Respondent argues that no reasonable hypothesis exists linking the late veteran's alcohol consumption, during operational service and eligible service and thereafter, with his malignant carcinoma of the colon.

The Respondent, in submitting such contentions placed reliance on the matter of Bull v Repatriation Commission (2001) 66 ALD 271.
consideration and findings
In preliminary comment, the Tribunal observes that the date of effect, if the Applicant is successful with her claim is 9 December 1998.
In furtherance of the matter under consideration, the Tribunal notes the medical evidence contained in the Macarthur Health Service Records (Exhibit R2), the certificate of death and the attached autopsy report at T5, together with the medical report (Exhibit R5) of Dr Venkatersan (the late veteran's treating general practitioner from 1995 up to the time of his death on 1 July 1998). As a consequence, it is the Tribunal's finding that the late veteran died on 1 July 1998 with the cause of death being metastatic carcinoma of the colon. Further, the Tribunal finds that the clinical onset of the malignant neoplasm of the colon was some few months earlier, namely the first few months of 1998.
The Tribunal notes that the late veteran had no other war-caused disabilities. It is also noted that prior to his periods of operational service with the Far East Strategic Reserve from 1957 to 1959, and Vietnam from 15 March 1968 to 26 March 1969, and a period of eligible defence service from 7 December 1972 to 23 September 1975, the late veteran served with the RAF in the latter phases of World War II and in Korea between the years 1942 to 1953.
The Tribunal also notes that the Applicant did not pursue the issue of smoking and the raising of any hypotheses connecting the late veteran's death from malignant carcinoma of the colon, with the circumstances of the late veteran's service.
In relation to the late veteran's consumption of alcohol, the Tribunal, having considered all the material placed before it, identifies the following facts which are raised by such material:

that the late veteran was a social drinker prior to his Vietnam service;
that the late veteran's drinking habit increased while he was in Vietnam and that he was drinking half a dozen drinks per day;
that the late veteran's period of service in Vietnam was stressful, with the following incidents/experiences being nominated:
·the late veteran's feelings of responsibility for the young national servicemen in Vietnam and his concern for their safety and survival;
·in driving senior officers around in Vietnam, he was concerned at whether he was going to be shot at or whether he would drive over a mine;
·when sitting in a tent talking to a fellow servicemen, a sniper fired at the tent, with the bullet hitting the other person and killing him;
·while in Vietnam, he was a driver for senior officers . On one occasion when he was driving the Brigadier, the vehicle in front of them was blown up and all the occupants killed, and he and the Brigadier narrowly escaped serious injury;
·that the late veteran continued to drink at least six drinks a day after his return from Vietnam until his discharge from the Army in 1975;
·that the late veteran continued to drink after his discharge from the army at an average of four to five drinks a day, or alternatively an average of three to six drinks a day;
·that the late veteran is said to have become upset when telling the Applicant about stressful experiences/incidents occurring during his Vietnam service;
·that the late veteran had confided in his consulting psychologist, Dr Deane, that he believed his personality had changed a great deal and that he was labelled by friends and family members as being an aggressive and arrogant person while talking and socialising with them;
·that the late veteran had confided in Dr Deane that he had nightmares, flashbacks and many times panic attacks when thinking about his time spent in Vietnam and that he began to drink and smoke heavily to forget and overcome his nervousness and anxiety;
·that Dr Venkatersan considered that the late veteran's alcohol intake during his period of care was minimal, and to his knowledge this was the late veteran's pattern of alcohol consumption in the past;
·that medical records obtained from Macarthur Health Services indicate that the late veteran denied any consumption of alcohol on two occasions in May/June 1998 when asked as to his consumption;
·that in Vietnam the late veteran may have been exposed to potentially dangerous situations, although no specific incidents in which the late veteran was in hostile contact with enemy forces could be identified, either from the records or from the information provided by former colleagues in his unit;
·that the consumption of alcohol by Australian soldiers in Vietnam was very high and that it seems likely that the late veteran would have consumed large amounts of alcohol when off duty, with his position as a senior NCO, a military policeman, and a base camp soldier, for at least part of the time, may have contributed to an excessive intake;
·that no record has been identified where all occupants of a vehicle were killed by a mine blast; and
·that no record has been found of an incident inside Nui Dat where a soldier was killed by a stray bullet.

The Tribunal, having considered all the material and having identified the facts raised from that material, considers that there are two possible hypotheses raised by the material, namely:
(a) that the late veteran was a social drinker of alcohol prior to his service in Vietnam. Stress from experiences during his service and the particulars of his service in Vietnam were a material contribution to his increased use of alcohol in Vietnam and thereafter. The increased usage of alcohol by the late veteran, as a consequence of his Vietnam service, was a material contribution to the total quantity of alcohol consumed by the late veteran in a 25 year period, thereby connecting a war-caused increase in alcohol intake with malignant neoplasm of the colon;
(b) that the late veteran was a social drinker of alcohol prior to his service in Vietnam. The late veteran experienced particular severe stressors during his service in Vietnam which led to alcohol dependence and this in turn led to a total consumption of alcohol in excess of 250 kg within a 25 year period, thereby connecting a war-caused increase in alcohol intake with malignant neoplasm of the colon.
In addressing the issue of whether these two nominated hypotheses are reasonable hypotheses, the Tribunal notes that the two relevant Statement of Principles in this matter are:
·SoP Instrument No 58 of 2002 concerning malignant neoplasm of the colorectum;
·SoP Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse.
The relevant factors in each SoP, which as a minimum must exist before it can be said that a reasonable hypotheses has been raised, are:

Within Instrument No 58 of 2002, factor 5(c):
"drinking at least 250 kg of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum."
Within Instrument No 76 of 1998, factor 5(b):
"experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse".

Paragraph 8 of SoP Instrument No 76 of 1998 provides:

…""experiencing a severe stressor" means the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other peoples' physical integrity, which event or events might evoke intense fear, helplessness or horror."

Events that qualify as severe stressors, while serving in the Defence Forces, or undertaking other service where the Act applies, include:

(i) threat of serious injury or death; or
(ii) engagement with the enemy, or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.

In addressing the issue of whether the hypotheses nominated are reasonable hypotheses, the Tribunal observes the exposition of the law by the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517, where at 533 it concludes:
"A reasonable hypotheses requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities".
Further the Tribunal notes the reasoning of the Full Federal court in Bull v Repatriation Commission (2001) 66 ALD 271, with attention directed to the following:

it must be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury with the circumstances of service;
that what is required by a decision maker is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service;
that the Tribunal is obliged to look at all the material before it, not just some of it;
that the formation of an opinion involves an assessment of the factual material before it and in essence involves reaching an opinion about a factual matter. Such an opinion is primarily a question of fact, with any error being an error of fact, "unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed." (ALD 277).

In this matter the Tribunal is mindful that the Applicant only met and married the late veteran in the late seventies and early eighties respectively. Accordingly, it is not surprising that the Applicant has a less than detailed knowledge, and in some circumstances an absence of knowledge, of what the late veteran's activities and use of alcohol were prior to their meeting and marriage. Similarly, the material in the late veteran's medical records, contained within the "T-documents", is silent on the late veteran's use of alcohol. The material points to the late veteran being discharged in 1975, with a medical rating of "fit for service everywhere", a comment that he was still an active squash player and had gained some 17 lbs in weight over his 20 years of service, although being described "as somewhat obese, but big frame and little fat".
In addressing the use of alcohol by the late veteran, the material points to the late veteran having commenced drinking during his service with the RAF in World War II, when it is said that he was drinking two drinks each evening. Thereafter the material is silent as to the late veteran's use of alcohol until 1968 when he is described as a social drinker. The Tribunal observes that during the period 1943 - 1968 the late veteran had seen service in World War II, Korea, migrated to Australia, worked as a station hand, joined the Army in 1955 and served for two years in the Far East Strategic Reserve (operational service) as a military policeman.
The Tribunal next observes that the material points to the late veteran's increase in his use of alcohol from that of a social drinker to six drinks a day. Such an increase is pointed to in the material and is said to have arisen as a consequence of stress associated with his service, experiencing particular stressful events, and by virtue of the nature of his service, which included availability to cheap alcohol, the customs and practices of his work environment and the social pressures and customs of his peer group.
The material points to the late veteran continuing to drink at this increased rate of six drinks a day, after his Vietnam service, as both a consequence of his duties as Mess president of the Sergeant's Mess and a continuance of a habit which had evolved during his operational service.
The Tribunal further observes that the material points to the late veteran continuing to drink an average of four to five drinks per day until 1994, at which time he and his wife separated. The material points to the late veteran's use of alcohol during this period (that is from 1975 to 1994) as arising from a continuance of his habit, having developed during his operational service, and also his attempt to cope with anxiety and depression arising from service. It is also noted that the material points to a divorce from his first wife in the early seventies and the death of a son in 1988, the latter event associated with some temporary increase in alcohol usage by the late veteran.
The Tribunal, mindful that an opinion as to whether a hypothesis is reasonable is a question of fact, identifies that the material points to the late veteran consuming six drinks a day during his Vietnam service. The material further points to the late veteran being a social drinker prior to his Vietnam service. The material does not point to a definition of the term "social drinker" either in context or quantum. The material does point to the nature of the late veteran's operational service in Vietnam, incidents experienced, the stress of operational service and the particulars of an environment in which cheap alcohol was freely available and readily consumed in a social milieu of consistent peer custom and practice.
It is at this point that the Tribunal experiences difficulty in this matter. The first, and perhaps a critical difficulty experienced by the Tribunal, is to appreciate what is meant by the term social drinker in the context of this matter and given the history of alcohol usage by the late veteran pointed to by the material.
In assessing all the material in relation to the late veteran's service and life history and his use of alcohol between 1943 and 1968 (ie prior to his period of operational service in Vietnam) there is, in the Tribunal's view, a veritable absence of material relating to the late veteran's use of alcohol, with the exception of his two drinks a day when serving with the RAF in World War II. In such circumstances, and by virtue of the Applicant's understandable lack of knowledge about the late veteran's circumstances in these years, the Tribunal is left in a position where it is unable either to infer or assume facts as to alcohol usage by the late veteran prior to 1968, which would allow the term "social drinker" to have some quantitative meaning. In so stating, the Tribunal is emphasising that the material is of extremely limited assistance to the Tribunal, in either drawing inferences or making assumptions as to pre 1968 alcohol consumption by the late veteran, and to do so in such circumstances would in the Tribunal's view be speculative.
As a consequence of the material not pointing to a definition of "social drinker" in terms of quantum, the Tribunal observes that the material does not point to any particular quantum increase of alcohol usage as arising out of operational service.
Similarly, the Tribunal observes that while the material points to a continuance of alcohol usage of six drinks a day for the remainder of his service to 1975 and an average of five drinks a day to 1994, the material does not point to or allow the Tribunal to infer or assume facts which would permit an appreciation of what amount of his post operational service alcohol usage was war-caused.
Further, in relation to the quantum of alcohol consumed in a 25-year period within 40 years of the clinical onset of the malignant carcinoma of the colon, factor 5(c) of SoP Instrument No 58 of 2002 requires that an amount of 250 kg be consumed. This amount is a minimum amount that has been consumed as a consequence of the operational service. It is also noted that factor 5(c) is not a factor to which material aggravation or contribution applies (paragraph 6 of the same Instrument).
While the Tribunal is satisfied that the material points to a consumption of alcohol by the late veteran in excess of 250 kg over the requisite 25 year period, the material does not point to raised facts linking such consumption with a war-caused alcohol habit. In essence, the material before the Tribunal does not point to raised facts which are consistent with the template of factor 5(c) in relation to war-caused alcohol consumption alone.
In summary, the Tribunal, having considered all the material placed before it, concludes that the material does not point to the necessary element of consumption of at least 250 kg of alcohol in a 25 year period within 40 years of the clinical onset of malignant neoplasm of the colon in 1998, the consumption necessarily being related to the late veteran's operational service. Thus the template nominated by factor 5(c) of SoP Instrument No 58 of 2002 is not consistent with the facts raised by the material. The hypothesis associating the late veteran's operational service, his increase in alcohol usage and his malignant carcinoma of the colon, is thus not a reasonable hypothesis.
The Tribunal, in addressing the second hypothesis raised by the material, accepts that the material does point to the following:

social drinking prior to service in Vietnam;
exposure to particular traumatic events, namely:

- the mine incident when the vehicle in front exploded and all were killed (the mine incident);
- the shooting incident, whereby a fellow soldier was shot and killed by a sniper when sitting and talking to the late veteran in the tent (the shooting incident);

alcohol consumption increased to six drinks a day during his Vietnam service;
alcohol consumption continued after his Vietnam service at the rate of six drinks a day until 1975;
alcohol consumption continued after leaving the service at the rate of an average five drinks a day until 1994; and
Dr Dinnen considered that the late veteran satisfies the diagnostic criteria for alcohol dependence.

The Tribunal, in considering all the material before it, is satisfied that, on the balance of probabilities, during the period commencing during his Vietnam service and continuing until 1994, the late veteran suffered from alcohol dependence. The Tribunal is unable to further extend the diagnosis to periods either prior to his Vietnam service or after 1994, because there is insufficient material on which to make such a diagnosis.
The Tribunal, in determining whether the late veteran's alcohol dependence was connected to his war service, observes that SoP Instrument No 76 of 1998 is the appropriate Statement of Principles. Factor 5(b) nominates that a severe stressor must have been experienced by the late veteran within two years immediately before the clinical onset of alcohol dependence. Experiencing a severe stressor is defined within paragraph 8 of the SoP and has been detailed at paragraph 41 of this decision.
The Tribunal, having examined all the material before it, is satisfied that the material points to the late veteran experiencing a severe stressor on the two occasions nominated, namely the mine incident and the shooting incident.
Accordingly, the Tribunal is satisfied that facts raised by the material are consistent with the template nominated within factor 5(b) of SoP Instrument No 76 of 1998. As a consequence, the Tribunal concludes that the hypothesis connecting the late veteran's operational service in Vietnam with his alcohol dependence is a reasonable hypothesis.

In addressing section 120(1) of the Act, the Tribunal observes that the two incidents nominated as the "mine incident" and "the shooting incident" are central in determining whether or not the late veteran experienced a stressor as defined by paragraph 8 of SoP Instrument No 58 of 2002.
The two historical reports, Exhibits A4 and R3, clearly detail that the two events (the mine incident and the shooting incident) as described variously over time by the Applicant, are neither recorded nor remembered as happening in the context as described by the Applicant. More importantly, the two reports provide detailed evidence that the late veteran was not a participant in either incident. As a consequence, the Tribunal is satisfied beyond reasonable doubt that the late veteran was not involved in either of the two incidents as described by the Applicant, and as such did not experience the stressors as pointed to by the material.

Given that the facts raising the reasonable hypothesis concerning alcohol dependence and operational service have been disproved beyond reasonable doubt, the Tribunal determines that the late veteran's alcohol dependence was not war-caused.
Further, the Tribunal, having concluded that the late veteran's alcohol dependence was not war-caused, determines that the late veteran's death from malignant carcinoma of the colon was not war-caused, as alcohol dependence as a war-caused disease is necessary to satisfy factor 5(c) of SoP Instrument No 58 of 2002, in the circumstances of the particular hypothesis.
As a consequence of the Tribunal's considerations concerning both hypotheses raised by the material, the Tribunal determines that the late veteran's death from malignant carcinoma of the colon is not war-caused and hence the Applicant's claim must fail.
The Tribunal determines that the decision under review is affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: O. Caragianni           .....................................................................................
  Associate
Date of Hearing  2 September 2002
Date of Decision  6 November 2002
Counsel for the Applicant        Mr M Vincent
Advocate for the Respondent Mr J Marsh