Hayes and Repatriation Commission - [2000] AATA 753

DECISION AND REASONS FOR DECISION [2000] AATA 753

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/259

VETERANS' APPEALS DIVISION       )
           Re      ARTHUR MYLES HAYES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date29 August 2000
PlaceSydney

Decision      The decision under review is set aside and in substitution therefore the Administrative Appeals Tribunal finds that the Applicant's psoriasis was war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 on and from 7 November 1996.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans - whether psoriasis war caused - Keeley issue - parties agree applicant had psoriasis at relevant time - respondent concedes stressor – psoriasis war-caused

Legislation
Veterans' Entitlements Act 1986 ss 9, 120(1) and (3)

Statement of Principles
Repatriation Medical Authority Statement of Principles concerning Psychoactive Substance Abuse or Dependence Instrument No.5 of 1994
Repatriation Medical Authority Statement of Principles concerning Psoriasis Instruments No.7 of 1996 and No.21 of 1998
Cases
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

29 August 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Repatriation Commission dated 21 April 1997 (T2) as affirmed by the decision of the Veterans' Review Board on 14 January 1999 (T24), which refused the Applicant's claim that his psoriasis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Applicant, Mr Arthur Myles Hayes, was represented by Mr C Colborne of counsel who was instructed by Vardenaga Roberts Solicitors, and the Respondent by its advocate, Mr R Wallis.
ISSUES BEFORE THE TRIBUNAL
The issue before the Tribunal was whether the Applicant's psoriasis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
LEGISLATIVE FRAMEWORK
The relevant legislation in relation to this matter was the Veterans' Entitlements Act 1986 ("the Veterans' Act"), in particular section 9. Section 9 provides:
"9 War-caused injuries or diseases
(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;
…"
The standard of proof for the operational service given to his country by Mr Hayes between 27 March 1943 and 29 January 1946 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Veterans' Act.
"120 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.
…..
(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.
…"

In the review of Mr Hayes's application, I was bound to apply section 120A of the Veterans' Act because the Veteran's application was lodged after 1 June 1994. Hence the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Veterans' Act applied. I noted that the relevant SoP at the time of the Repatriation Commission decision of 21 April 1997, was Instrument No.7 of 1996 concerning Psoriasis.
I was bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and required to take into account Mr Hayes' accrued rights.
The parties agreed, and I accepted, that the earliest date of effect in this matter was 7 November 1996.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
ITEM DATE NAME
Medical Report of Dr G Miller       22 July 1999 Exhibit A1
Photograph of the Applicant's Psoriasis October 1998           Exhibit A2
Medical Report of Dr M Walden 21 October 1999     Exhibit R2

EVIDENCE OF THE APPLICANT ARTHUR MYLES HAYES

Mr Hayes whose date of birth was 23 February 1925, gave evidence regarding his war service. He joined the RAAF in March 1943 and was a pilot and engaged in training aircrew. He had been posted at various locations both in Australia and in England and Scotland. Amongst other assignments, Mr Hayes had served with the Advanced Flying Unit in Lancashire, England. He had also been involved in training with the Advanced Flying Unit in Gloucestershire and Babdown Farm. He served his country on operational service from 27 March 1943 to 29 January 1946 (T3).
Mr Hayes said that before enlistment, he did not drink alcohol except occasionally to have a beer for Sunday lunch with his father. He said he started drinking after he joined the RAAF, and when he was posted to Temora. He explained that on week-end leave he would go the pub and drink for three hours or so until he had "had enough", and then return to camp. Mr Hayes said that when he went to England, he drank even more. He said that he was close to the action, and was always hearing about bomber losses, war stories and being part of other disturbing events. He said alcohol was more available in England, and he and his colleagues would sit and just keep drinking until the pub closed. Mr Hayes said that he would then ride home on his bicycle under the influence of alcohol, and later also on his motorcycle.
Mr Hayes said that after discharge he had a "type of war neurosis" based on the stress of the war and the bombing, and found it "a very difficult time to settle down … after being in the airforce." Mr Hayes said that he set up a small business as a sawdust merchant and that later his father bought a semi-trailer and he carted cement. Mr Hayes said that he drove the semi-trailer, sometimes drunk and sometimes hung-over. He said that he had often driven under the influence of alcohol until random breath testing commenced. Mr Hayes also said that he had flown crop-dusters for ten years from approximately 1967 or 1968, and that he had flown under the influence of alcohol occasionally. When questioned further, he said that it was about five or six times.
Mr Hayes said that his drinking had not changed much up to the present time except that he perhaps drank a little less now.
Mr Hayes gave evidence that on 26 February 1991 he suffered a heart attack outside a doctor's surgery as he was driving through the centre of Brisbane. He said that after that episode, he drank less for a time, restricting the amount to three or four stubbies a day. However, he then recommenced drinking, and although he knew it was not prudent, was drinking heavily, up to half the amount he had earlier drunk in the time prior to his heart attack. He said that he tried not to drink as much, but that his nerves were deteriorating and in spite of suffering diabetes, he continued to drink. Mr Hayes said that he had presently restricted his drinking to a carton of beer, that is 24 stubbies a week. He gave details of how his drinking had caused serious marital problems over the years, and praised his wife for her understanding and tolerance.
Mr Hayes also gave evidence regarding the apprehension he suffered in England with bombs "too close for comfort" and air raids. He said that in England the talk was about "prangs" all the time. He said this referred to descriptions of people being killed and stories regarding their opponents in war. Mr Hayes also recounted the attitudes of the flying instructors to the "training sprogs" or the student pilots as they were called. He said that the instructors were very tough on the students and there was constant pressure on the students to prove their flying abilities under threat of being "scrubbed". Mr Hayes said that:
"In the camp we had one hut that was set aside which was called the "scrubbos hut", and that was here the fellows – the trainees moved their gear when they were scrubbed from training, when their instructors didn't consider that they were progressing well enough, didn't think they'd make the grade … so they went into the scrubbos' hut and there was always a fear that you might be scrubbed. It was something on the back of your mind all the time."

Mr Hayes then gave evidence about how he discovered his psoriasis, which was by way of a "scaly scab" under his right wrist approximately one month after his discharge from the RAAF. He described the diagnosis of psoriasis by his doctor and spread of the disease to his hair, elbows, knees, forearms, anus and its continuous spread since it was contracted. He said that small lesions would appear, grow, or sometimes recede. Mr Hayes' also said that others would replace them. He indicated it was a continuous process, and he said that he had lesions everywhere, in his hair, and on his buttocks and thighs. I was mindful of photographs (Exhibit A2) tendered in this regard. Mr Hayes said that psoriasis lesions even formed in the scar over his left chest where his melanoma had been removed.
Mr Hayes said that after his by-pass surgery the medication he took caused the psoriasis which he had had for approximately 50 years, to worsen. When cross-examined about why he had not noticed or reported a lesion when it first started in 1946, Mr Hayes replied that a young person of 18 or 20 years as he then was, did not know what it was or worry about such matters.
Mr Hayes said that he had been prescribed Tenormin for his hypertension since its diagnosis in June 1983, and that it had aggravated his psoriasis. When questioned as to the connection between beta-blockers and psoriasis, and why he had not reported the worsening of his psoriasis, Mr Hayes said that all he had been concerned about when recovering from heart surgery was that aspect of his life. He said that he did not complain or inquire about psoriasis because little else other than life or death mattered at that time.
EVIDENCE OF MRS JOY LILIAN HAYES
Mrs Hayes, wife of the Applicant, gave oral evidence. She said that she married Mr Hayes on 6 June 1948 after having known him for seven or eight months. She said that when her husband's psoriasis was first developing, she thought it was dandruff until it spread to his knees and elbows. She said he now had it all over his body, and that it became aggravated, red and itchy when he was "nervy." In this regard, I noted that Mr Hayes gave evidence that when his nerves deteriorated he increased his drinking. Her evidence was that Mr Hayes' psoriasis worsened after the heart surgery.
Mrs Hayes said that her husband was drinking quite an amount, 8 – 10 and even up to 12 stubbies a day when she met him. She corroborated the evidence that Mr Hayes' drinking had caused marital problems. Mrs Hayes said that after the diabetes diagnosis and heart surgery, her husband drank much less, but in fact continued to drink. She corroborated the evidence that her husband had often driven drunk.
MEDICAL EVIDENCE
evidence of dr m miller consultation physician
The report of Dr M Miller dated 22 July 2000, and his appended Curriculum Vitae were Exhibit A1 before the Tribunal. Dr Miller had made his assessments of Mr Hayes with reference to SoP Instrument No.21 of 1998 concerning Psoriasis and Instrument No.76 of 1998 concerning Psychoactive Substance Abuse or Dependence.
Dr Miller, upon clinical examination of the Applicant in his report documented the Applicant as suffering:
"… guttate and plaque psoriasis involving his legs, trunk, the elbows and his knees and his scalp. There was even psoriasis involving a very large deep scar over the left chest, 10 cm x 8 cm in size, where his melanoma had been removed … Mr Hayes suffers from moderately severe psoriasis involving the whole of his body."
Dr Miller outlined the history he took from the Applicant in respect of his psoriasis:
"He first became aware, in retrospect, of his psoriasis during service when he found a patch on his right wrist. He did not report it at the time. A few months after he left the Air Force he developed psoriasis in his scalp. The next year he developed psoriasis over the knees and subsequently this spread to involve his elbows and patches on his trunk."
Dr Miller opined that Mr Hayes satisfied the definitions of alcohol abuse in that "he has continued alcohol use despite persistence of interpersonal problems caused or exacerbated by the effects of alcohol." He also opined that Mr Hayes experienced a number of severe stressors within the two years immediately before the alcohol abuse. Dr Miller also considered that the alcohol abuse contributed to Mr Hayes' hypertension. He opined also that Tenormin which was prescribed for Mr Hayes' hypertension was followed by the "significant clinical deterioration" of the psoriasis (Exhibit A1).
evidence of dr m walden consultant pyschiatrist
The report of Dr M Walden, dated 21 October 1999 was Exhibit R2 before the Tribunal. Dr Walden opined that "Mr Hayes does not currently fulfil the DSM-IV Criteria for Alcohol Dependence or Alcohol Abuse and has not done so for many years."
Dr Walden did concede that on the history given by Mr and Mrs Hayes, it would appear Mr Hayes "drank hazardously for around 40 years."
I was mindful that Dr Walden's opinions were formed in relation to SoP Instrument No.76 of 1998 concerning Psychoactive Substance Abuse or Dependence.
evidence of dr e lobel occupational dermatology consultancy
There were other medical reports in the T-documents, and I noted in particular that of Dr E Lobel of 27 May 1998 (T20) who, at page 89, opined as follows:
"Mr Hayes first developed psoriasis a few weeks after suffering from infected scabies including multiple furuncles and a carbuncle. The carbuncle was treated by incision and drainage. Psoriasis may be precipitated in the skin of a genetically predisposed individual by trauma to the skin particularly penetrating trauma. Mr Hayes gives a history of the onset of psoriasis within a few weeks of having infected scabies with furuncles and a carbuncle which was treated in hospital while he was still on active service. Severe infection such as boils and a carbuncle do represent deep trauma in the skin, and in addition, the carbuncle and possibly a boil (furuncle) were treated by surgical incision and drainage which represents penetrating trauma."
Dr Lobel supported Mr Hayes' application that given the history of onset, his psoriasis met the requirements of the SoP (unspecified), and was war-caused.
SUBMISSIONS AND CONCLUSIONS
Having heard the evidence, I had to take it into account, together with the submissions, legislation and case law to decide whether Mr Hayes' psoriasis was war-caused within the terms of section 9 of the Veterans' Act.
I noted that Mr Hayes' claim for psoriasis was rejected by the Repatriation Commission on 21 April 1997 on the basis that it did "not satisfy the Statement of Principles issued by the RMA in respect of psoriasis" (T2/5). The SoP that was current at the time of the Repatriation Commission was Instrument No.7 of 1996. However, upon appeal to the Veteran's Review Board, the SoP in force and applied when the decision which was handed down on 14 January 1999 was made, (before the decision in Keeley (supra)), was Instrument No.21 of 1998 concerning Psoriasis.
I noted also that Mr Wallis submitted that Instrument No.7 of 1996 concerning Psoriasis was the correct SoP to be applied in Mr Hayes' case. I was mindful that I was bound by the principles established in Keeley (supra).
In this respect I was mindful of the comments of Madgwick J in Thompson v Repatriation Commission [2000] FCA 939 regarding the application of the SoPs:
"In my view … if an intention is imputed to Parliament that, after a veteran (or his or her dependant) has made a claim on one legally relevant set of criteria and embarked on the exercise of a right of review of a claim so based, the substantive rules governing the claim should not be changed to the complainant's disadvantage."
Madgwick J also went on to say that:
"Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued."
Bearing these comments and the principles established in Keeley (supra) in mind, I was bound to apply the SoP concerning psoriasis applicable at the time of the Repatriation Commission decision on 21 April 1997, namely Instrument No.7 of 1996.
Mr Hayes gave operational service to his country so I have applied the principles as outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 and sections 120(3) and 120(1) of the Veterans Act in coming to my decision.
application of principles in repatriation commission v deledio (1998) 83 fcr 82
I was mindful that the approach in decision-making involving operational service such as Mr Hayes served, was set out by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and was approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1The 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.
2If 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.
3If 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.
4The 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.

With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
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.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

I turned then to decide whether applying the principles set out above, the material before me raised an hypothesis connecting Mr Hayes's psoriasis with his war service.
I noted also the concessions made by Mr Wallis on behalf of the Respondent, namely:
"….. I am inclined to concede a few little things like – on psoriasis in 1945 which I notice in the facts – it's (sic) facts and contentions – a contented (sic) point but am also prepared to concede clinical worsening as well…. I am just having difficulty trying to sort out the substance abuse side of things…"
"We accept that the Applicant did in 1945 have psoriasis. We can't actually put it before the trauma involving the scabies."
I found that in respect of his psoriasis, Mr Hayes discovered that he had psoriasis following treatment of a "big scaly scab under my right wrist" which he first noticed approximately a month after his discharge from the RAAF in January 1946. I was mindful of the evidence of Mr Hayes, gained from many years experience with the disease, that psoriasis:
"doesn't happen overnight, it doesn't happen in a few weeks, it's a very ongoing, slow process. To get to the size on my wrist that it was … it could've been a year from the original first – original first spot that appeared."
As noted above Mr Wallis conceded on behalf of the Respondent that Mr Hayes developed psoriasis as given in evidence, during his service in 1945.
From all the material before me, the evidence of Mr Hayes and the medical evidence, and taking into account the concession of the Respondent, I was satisfied that Mr Hayes suffered psoriasis and had done so since he discovered his first lesion shortly after his discharge from the RAAF. I referred to Mr Hayes' evidence regarding its development following an attack of scabies, and found that there was an hypothesis connecting the psoriasis suffered by the Applicant with his operational service.
I was then required to consider whether there was an appropriate SoP which could be applied to the circumstances. As discussed earlier in these reasons, the SoP Instrument No.7 of 1996 concerning Psoriasis applied at the time of the primary decision, and therefore in applying Keeley (supra) in my decision-making, I found that it was the appropriate Instrument to consider in relation to Mr Hayes' claim. Thus, I had to decide whether the hypothesis raised with regard to the development of the Applicant's psoriasis was reasonable by considering whether it was consistent with the templates in Instrument No.7 of 1996.
The factors raised in the SoP are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition of the Veteran, in this case, Mr Hayes' psoriasis with the circumstances of his service.
statement of principles instrument no.7 of 1996 concerning psoriasis
The definition in the SoP Instrument No.7 of 1996 concerning Psoriasis was as follows:
"Psoriasis" means a chronic inflammatory skin disorder involving hyperproliferation of the epidermis and characterised by erythematous, sharply demarcated papules and rounded plaques, covered by silvery scale, attracting ICD code 696.1"
The minimum factors required to relate the psoriasis to the Applicant's war services are outlined in Factor 5 of this SoP. As relevant, they are as follows:
"(c)undergoing treatment with ß-blockers at the time of the clinical worsening of psoriasis; or
…
(e)suffering trauma or other interruption to the integrity of the epidermal and dermal layers of the skin at the affected site (resulting in the occurrence of the Koebner phenomenon) within the 30 days immediately before the clinical worsening of psoriasis;
…"

Where Factor 5(c) is applicable, Clause 6 operates to limit its application.
"6. Paragraphs 5(c) to 5(f) apply only to material contribution to, or aggravation of, psoriasis where the person's psoriasis was suffered or contracted before or during (but not arising out of) the person's relevant service;"
I noted that Mr Wallis conceded that the Applicant "… did in 1945 have psoriasis" which was within the time frame of the Applicant's relevant service. I was satisfied that the Applicant fell within the requirements of Clause 6 in that his psoriasis was contracted during his relevant service after the bout of scabies he suffered.
I then considered whether Mr Hayes' condition met the requirements of Factor 5(c), noting that Dr Miller at Exhibit A1 stated that Mr Hayes was treated between 1983 and 1987-8 for hypertension with Tenormin, a beta-blocking agent. He reported that during that time, Mr Hayes said that he "became aware that his psoriasis was worsening." Dr Miller reported that "after he had started the Tenormin, he found that his buttocks were significantly affected by psoriasis." In this respect, I also noted the evidence of the Applicant and at Exhibit A2, the photograph provided by the Applicant of his psoriasis taken in October 1998 indicating the psoriasis had significantly affected his buttocks, torso, thighs, knees and elbows. Similar photographs were reproduced in the T-documents at T21 and T22.
I accepted the evidence before me that Mr Hayes's psoriasis became worse soon after being prescribed a beta-blocker as treatment for the sequelae of an accepted disability, ischaemic heart disease. I therefore found that he satisfied Factor 5(c) of the SoP concerning Psoriasis.
In relation to Factor 5(e) of the SoP, I noted that the Respondent conceded from the evidence that Mr Hayes was suffering psoriasis upon his discharge from the RAAF, and that there had been a clinical worsening of the psoriasis since that time. I agreed with that and then considered Factor 5(e) of the SoP, where I found that he had suffered "trauma or other interruption to the integrity of the epidermal and dermal layers of the skin at the affected site …". However, I found from the evidence that the scabies suffered by the Applicant did not precipitate the "clinical worsening of psoriasis" within the time frame required by the SoP. Put simply, the Applicant did suffer from an attack of scabies approximately one month prior to suffering psoriasis, but it was the onset of psoriasis rather than its clinical worsening.
I was mindful in coming to a decision regarding whether a reasonable hypothesis had been raised to find the connection between Mr Hayes' psoriasis with his war service that it was not a matter of proving anything or weighing up the medical reports against each other. However, having considered the medical evidence as well as the evidence of the Applicant and his wife, I was satisfied from the material before me that Mr Hayes' condition met Factor 5(c) in SoP Instrument No.7 of 1996 concerning Psoriasis.
The accounts given by Mr Hayes and his doctors regarding the development of his psoriasis were clearly not fanciful or too tenuous when considered in relation to the tests in Byrnes (supra). Therefore, I could find that a reasonable hypothesis was raised to find the connection between Mr Hayes' psoriasis his war service.
Although I found that the Applicant satisfied the requirements of the SoP Instrument No.7 of 1996 concerning Psoriasis, I have also, in the alternative and for the purposes of completeness, and noting the parties' submissions, considered the Applicant's claim on the basis that the appropriate SoP to be applied may be Instrument No.21 of 1998 as applied by the Veteran's Review Board.
statement of principles instrument no.21 of 1998 concerning psoriasis
Psoriasis in SoP No.21 of 1998 was defined as:
"a chronic recurrent papulosquamous skin disorder attracting ICD code 696.1. Psoriasis is associated with hyperproliferation of the epidermis and is classically characterised by erythematous, sharply demarcated papules and rounded plaques, covered by silvery scale. Psoriasis usually involves the scalp and extensor surfaces of the limbs especially the elbows and knees. There are a number of psoriatic subtypes which describe the area of involvement, for example flexural psoriasis (where the skin lesions occur on flexor surfaces such as the groin), or the pattern of cutaneous change, for example psoriasis annularis (psoriasis with lesions occurring in ring shaped patches), or the type of cutaneous lesion, for example pustular psoriasis (where pustules predominate rather than papules, plaques or macules). Psoriatic arthritis, an erosive usually asymmetrical oligoarthritis, may occur with this chronic recurrent papulosquamous skin disorder."
I was satisfied that Mr Hayes suffers psoriasis and as stated above found that it commenced during his war service. However, the minimum factors required to relate the Applicant's psoriasis to his war service were outlined in Factor 5 of Instrument No.21 of 1998. As relevant, they are as follows:
"(c)suffering trauma or other interruption to the integrity of the epidermal and dermal layers of the skin at the affected site (resulting in the occurrence of the Koebner phenomenon) within the 30 days immediately before the clinical worsening of psoriasis; or
(d)undergoing treatment with a drug from the specified list at the time of the clinical worsening of psoriasis; or
(e)suffering from alcohol dependence or alcohol abuse involving regular consumption of an average of 420 g/week of alcohol (contained within alcoholic drinks), at the time of the clinical worsening of psoriasis; or
…"

The specified list of drugs referred to in Factor 5(d) was defined in Clause 7 and included the prescribed therapeutic use of the following as relevant:
"(i) an oral or parenteral beta-blocker (for example propranolol); …"
I noted that Factor 5(c) of SoP No.21 of 1998 replicated Factor 5(e) of SoP No.7 of 1996. In this respect, I referred to the evidence previously accepted by me and by the Respondent, as outlined above, that the Applicant first noticed his psoriasis following his discharge from the RAAF. It was also accepted, again noting the concession of the Respondent, that the disease had clinically worsened over time though this may have been outside the short time frame required by the SoP.
Furthermore, I have already accepted the evidence before me that Mr Hayes' psoriasis became worse soon after being prescribed a beta-blocker as treatment for the sequelae of his hypertension and an accepted disability, ischaemic heart disease.
Therefore, I was satisfied that the Applicant fulfilled the requirements of Factors 5(d) of SoP Instrument No.21 of 1998. However, as the parties raised the Applicant's alcohol consumption and dependence as a Factor affecting his psoriasis, I have chosen to also consider its effect on the Applicant's psoriasis in these reasons.
Alcohol abuse and alcohol dependence are defined by Instrument No.21 of 1998 concerning psoriasis as:
"alcohol abuse" means evidence of a maladaptive pattern of alcohol use manifested by recurrent and significant adverse consequences related to the repeated use of alcohol …
"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self-administration may result in tolerance, withdrawal and compulsive alcohol use behaviour …"
As to Factor 5(e), I found from the evidence of Mr Hayes and his wife, Mrs Joy Hayes that he rarely drank before he enlisted in the RAAF and that his drinking patterns increased considerably during his service due to the availability of alcohol and the
"stress of your training and the stress of the area where you were living, the bombing I experienced in London."
I accepted Mr Hayes' evidence and the evidence of his wife that following his discharge in January 1946, Mr Hayes drank considerably almost every night of the week until he had a heart attack in 1991. I noted that Dr Miller, in his report dated 22 July 1999 (Exhibit A1), documented the Applicant's drinking history as being in the vicinity of "ten and fifteen middies a day" or "between 100 and 150 grams of alcohol per day." Similarly, Dr Walden, in her report dated 21 October 1999 (Exhibit R2), took a history from the Applicant in which he said that since his discharge from the RAAF he was "consuming the equivalent of 8 to 10 stubbies per day".
I have noted, however, that Dr Walden, in forming her medical opinion as to the Applicant's drinking, applied SoP No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. From my reading of Keeley (supra), I was of the opinion that the Applicant's alcohol abuse and alcohol dependence would only be relevant to these proceedings if the later SoP concerning Psoriasis was applicable. In view of the beneficial nature of the legislation, the later SoP would be applicable in circumstances where it was more favourable to the Applicant. In such a case, I would be required to apply Instrument No.21 of 1998 in considering the effect of the Applicant's drinking on his psoriasis, and not an additional SoP dealing specifically with psychoactive substance abuse or dependence. I find therefore that Dr Walden's report, insofar as it examines Mr Hayes' drinking in light of SoP No.76 of 1998, not relevant in these proceedings.
In deciding whether the Applicant satisfied the definition of alcohol abuse or alcohol dependence as outlined in the SoP, I also took into account the evidence of Mr and Mrs Hayes. I accepted that following a short period when he reduced his drinking following his heart attack, Mr Hayes recommenced drinking, and was drinking up to half the amount he had earlier drunk in the time prior to his heart attack. I accepted Mr Hayes' evidence that he tried not to drink as much, but that his nerves were deteriorating, and that his behaviour caused marital tensions. He said that he had presently restricted his drinking to a carton of beer or 24 stubbies a week.
I accepted Mr Colborne's submission and the evidence of the Applicant and his wife about the alcohol consumption, and found that the Applicant continued to consume alcohol despite the persistence of interpersonal problems caused or exacerbated by alcohol. Specifically, Mr Colborne said that the Applicant:
"continued to use the substance despite knowledge of recurrent social problems … The Tribunal has both the evidence of Mr and Mrs Hayes about the arguments it caused and what would otherwise appear to have been and remained a very happy marriage. They were recurrent. They were social problems and it was clearly caused by the alcohol."

In addition, I accepted the evidence of the Applicant, which was corroborated by his wife, that Mr Hayes repeatedly rode his motorcycle, drove trucks and flew an aircraft under the influence of alcohol. I further accepted that he drank alcohol whilst taking medication for his condition of hypertension and even though he suffered diabetes.
From the evidence before me I was satisfied that Mr Hayes met the definition for alcohol abuse, as the evidence which was not in issue, documented by "recurrent and significant adverse consequences related to the repeated use of alcohol," namely, the ongoing marital problems and the driving of motorcycles, trucks and the flying of aircraft whilst intoxicated or otherwise under the effects of alcohol.
Similarly, I was satisfied that the Applicant met the definition of alcohol dependence demonstrated from the evidence before me of "the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems." Specifically, these were that the Applicant continued to drink alcohol despite having significant marital and medical problems including hypertension, ischaemic heart disease, diabetes and worsening of his psoriasis. I was satisfied that Mr Hayes was suffering alcohol dependence involving regular consumption of at least the amount specified in Factor 5(e) of Instrument No.21 of 1998 at the time of clinical worsening of his psoriasis.
consideration of psychoactive substance abuse or dependence
I noted that during the hearing, argument regarding the relevance of Instruments No.5 of 1994 and No.76 of 1998 concerning Psychoactive Substance Abuse or Dependence was raised by the parties. Due regard was given to these submissions at the time, however, I have subsequently formed the opinion that because the Applicant had not claimed psychoactive substance abuse or dependence for the purposes of a disability pension claim with the Repatriation Commission, consideration of whether Mr Hayes' drinking fell within the requirements of the SoPs for psychoactive substance abuse or dependence was not relevant to these proceedings. Accordingly, I have not reproduced those arguments in the context of the SoPs for psychoactive substance abuse or dependence. However, as outlined above, they did have some relevance to the consideration of alcohol abuse and alcohol dependence in relation to Clause 5(e) of the SoP No.21 of 1998 concerning Psoriasis, and I found from the evidence before me that Mr Hayes met Factor 5(e) in Instrument No.21 of 1998.
CONCLUSIONS
I turned then to consider finally, the application of section 120(3) of the Veterans' Act. I found that the reasonable hypothesis had been raised linking Mr Hayes' psoriasis to his operational war service because on consideration of the whole of the material before me, and as detailed above, I considered his situation fitted the templates in SoPs Instruments No.7 of 1996 and in the alternative, No.21 of 1998. I determined, therefore, on all the evidence before me including that of his doctors, that Mr Hayes' psoriasis was a war-caused disease. Thus, I could not be convinced beyond reasonable doubt that there was no sufficient ground for making that determination, (section 120(1) of the Veterans' Act).
DECISION
The decision under review is set aside and in substitution, the Tribunal finds that Mr Hayes' psoriasis was war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 on and from 7 November 1996.
I certify that the preceding 73 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 June 2000
Date of Decision  29 August 2000
Counsel for the Applicant        Mr C Colborne
Solicitor for the Applicant         Mr B Williams
Counsel for the Respondent    N/A
Solicitor for the Respondent    Mr R Wallis