Morris and Repatriation Commission

[2006] AATA 72

Administrative

Appeals

Tribunal

 

SUPPLEMENTARY DECISION AND REASONS FOR DECISION [2006] AATA 72

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/652

VETERANS' APPEALS DIVISION		)
Re		JOHN RAYMOND MORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

SUPPLEMENTARY DECISION

Tribunal Mr SC Fisher, Member

Date 1 February 2006

PlaceBrisbane

Decision

By way of a Supplementary Decision to the earlier 17 January 2006 Decision of the Tribunal (which is affirmed), the Tribunal sets aside the decision under review and substitutes the decision that the Applicant's alcohol abuse (in apparent remission) is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 11 May 2003.

The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.

.....................[Sgd].........................

Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – defence service with the Royal Australian Air Force – post traumatic stress disorder (PTSD) – application of Statement of Principles – condition defence-caused

Veterans’ Entitlements Act 1986 s 69A, 70, 120(4), 120A, 120B, 174 -176, 180A, 196B

Haughey and Repatriation Commission [2005] AATA 189
Woodward v Repatriation Commission [2003] FCAFC 160

REASONS FOR SUPPLEMENTARY DECISION

1 February 2006 Mr SC Fisher, Member

Introduction and Background

1.      On 17 January 2006, this Tribunal made the following decision (Morris and Repatriation Commission [2006] AATA 30):

“The Tribunal sets aside the decision under review and substitute the decision that the Applicant’s post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 9 June 2002.

The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.”

2.      The Applicant subsequently drew the attention of the Tribunal to the fact that the 17 January 2006 decision did not make any decision or order relating to whether or not the alcohol abuse suffered by the Applicant is defence-caused.  The parties were agreed that the Tribunal could consider this issue on the basis of the evidence previously adduced without the need for a further hearing.  The parties were further agreed that the Tribunal as previously constituted could make a supplementary decision concerning alcohol abuse.  This instrument is the Supplementary Decision and Reasons for Decision concerning alcohol abuse.  This decision should be read in conjunction with the 17 January 2006 Decision relating to the Applicant's post traumatic stress disorder which the Tribunal decided was defence-caused.

Issue Concerning Alcohol Abuse

3.      The issue concerning alcohol abuse can be framed in this way: is the Applicant's contention correct that the Applicant self-medicated using alcohol following the onset of defence-caused post traumatic stress disorder to the point that this constitutes alcohol abuse?  The Amended Statement of Facts and Contentions filed by the Applicant did mention alcohol dependence/abuse (in remission).  The Statement of Facts and Contentions filed by the Respondent did not mention alcohol abuse.

Evidence Relating to Alcohol Abuse

4.      The preponderant part of the evidence considered in the 17 January 2006 Decision related to post-traumatic stress disorder.  During the previous hearing, the medical evidence adduced by the parties related principally to post-traumatic stress disorder.

5.      In the 17 January 2006 Decision, paragraph 12G recites evidence of the Applicant that he began drinking alcohol to excess after the two incidents in question.

6.      In his medical report of 1 March 2005 (Exhibit 10), Dr Alcorn noted secondary alcohol use as well as the possibility of excess alcohol use.  Dr Alcorn made a diagnosis of "alcohol abuse (in apparent remission)".

7.      There was no other evidence of alcohol abuse.  It was treated as a secondary issue by the parties during the hearing.

Diagnosis

8. The first issue for the Tribunal to consider in respect of alcohol abuse is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is required to be determined to the reasonable satisfaction of the Tribunal: section 120(4). Dr Alcorn made a diagnosis of "alcohol abuse (in apparent remission)".  On the basis of the medical evidence before the Tribunal (discussed earlier in these Supplementary Reasons for Decision as well as in the 17 January 2006 Decision), the Tribunal is satisfied that the Applicant suffers from "alcohol abuse (in apparent remission)" consequent upon the defence-caused primary post traumatic stress disorder.  This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his defence service.

Tribunal’s Reasons

9.      Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his military service (in this case, defence service).  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 the Applicant's service (section 120B(3)(b)).  The relationship to service must be one of the relationships prescribed in section 196B(14): Haughey and Repatriation Commission [2005] AATA 189 at [63].

10.     In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP.  If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64].

The First Deledio Step: Alcohol Dependence or Alcohol Abuse

11.     The Tribunal is satisfied that there is a hypothesis linking the Applicant’s alcohol dependence or alcohol abuse with his operational service. This hypothesis follows from the Applicant self-medicating with alcohol in order to deal with the two events which he experienced during his Malaysian service. Alcohol dependence or alcohol abuse is a “disease” within the meaning of section 5D, and in the context of the provision, either this condition must be presently existing or recurrent.

The Second Deledio Step

12.     The second Deledio step is to determine the relevant SoP.  In this case, the relevant SoPs is Instrument No 76 of 1998 (alcohol dependence or alcohol abuse).

The Third Deledio Step

13.     The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point.

14.     SoP No 76 of 1998 expresses the relationship between alcohol dependence for abuse and the circumstances of the relevant service of a veteran in these terms:

“Factors

5.        The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

15.     During the hearing, as stated previously in these Supplementary Reasons for Decision, the parties (particularly the Applicant) did not address alcohol abuse with any particularity or specificity.  Nevertheless, the Tribunal notes explicit reliance by the Applicant on Factors 5(a) and (b) (refer to the Amended Statement of Facts and Contentions dated 15 July 2005 of the Applicant).

16.     The evidence of Dr Alcorn enables the Tribunal to be satisfied on the balance of probabilities that the Applicant self-medicated with alcohol such that this medical condition is related to the military service of the Applicant.  The same evidence also indicates, however, that the condition of alcohol abuse is in apparent remission.  The evidence of the Applicant was to the effect that after the two events in Malaysia, he began to drink alcohol to excess.  The 17 January 2006 Decision, paragraph 12G recites evidence of the Applicant that he began drinking alcohol to excess after the two incidents in question.  The Tribunal is satisfied that the temporal two-year rule required by Factors 5(a) and (b) is satisfied.

The Fourth Deledio Step: Findings of Fact

17.     The Tribunal has determined that the condition of alcohol dependence or abuse “fits” or is consistent with the relevant SoP.

18.     Based on the evidence and material before it, the Tribunal finds that the Applicant suffers from service related alcohol dependence or abuse (in remission).  Based upon the evidence before it, the Tribunal is not, however, satisfied as to the currency or the recurrency of the alcohol dependence or alcohol abuse of the Applicant.

Tribunal’s Conclusion

19.     Based upon the material before it, and for these Supplementary Reasons, the Tribunal concludes that the correct or preferable decision in this case is that the Applicant’s condition of alcohol abuse (in apparent remission) is defence-caused within the meaning of the Veterans’ Entitlements Act 1986.

Tribunal’s Decision

20.     By way of a Supplementary Decision to the earlier 17 January 2006 Decision of the Tribunal (which is affirmed), the Tribunal sets aside the decision under review and substitutes the decision that the Applicant's alcohol abuse (in apparent remission) is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 11 May 2003.

21.     The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member

Signed:         Jeff Mills   
                  Legal Research Officer

Dates of Hearing  27 September 2005 and 7 October 2005
Date of Supplementary Decision    1 February 2006
Counsel for the Applicant              Mr AC Harding
Solicitor for the Applicant               Gilshenan & Luton
For the Respondent  Mr M Smith, Departmental Advocate