Nolan and Repatriation Commission
[2001] AATA 726
•16 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 726
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/628
VETERANS' APPEALS DIVISION )
Re TERRENCE MICHAEL NOLAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member, Dr P D Lynch, Member
Date16 August 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides: 1) that the Applicant's disease of hypertension was war-caused. 2) that this decision is to take effect from 30 December 1997. 3) that the matter is remitted to the Respondent for it to assess the rate of Disability Pension to be paid to the Applicant.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – defence service - hypertension –post traumatic stress disorder - suffering from alcohol abuse or dependence before the clinical onset of hypertension - psychoactive substance abuse and dependence – whether alcohol abuse linked to any operational service - dual entitlement to pension - reasonable satisfaction to be assessed by reference to Statement of Principles – reasonable hypothesis linking condition to operational service
Veterans' Entitlements Act 1986, ss 6C(1), (1)(a), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 68(1) "defence service", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2)(a), (c), (d), (e), 72(1), 120(1), (3), (4), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.
Statement of Principles concerning Hypertension No 83 of 1995
Statement of Principles concerning Hypertension No 84 of 1995
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
16 August 2001 Mr M J Sassella, Senior Member Dr P D Lynch, Member
History of application
On 30 March 1998 Terrence Michael Nolan ("the Applicant") lodged with the Department of Veterans' Affairs ("the DVA") a claim (T5) for Disability Pension under the Veterans' Entitlements Act 1986 ("the Act") in respect of his disabilities of mechanical back pain, loss of hearing, hypertension and bilateral tinnitus. Previously the conditions of resolved haematoma testis, healed fractured nose and post-traumatic stress disorder ("PTSD") had been accepted as war-caused. A subsequent claim for chronic solar skin damage dated 21 September 1999 (not in Tribunal's documentation) resulted in a decision (T19) dated 2 December 1999 in the Applicant's favour.
On 6 June 1998 the Repatriation Commission ("the Respondent") determined (T11) that the disability of bilateral tinnitus was to be accepted as war-caused. The conditions of hypertension, mechanical back pain and loss of hearing were refused. Disability Pension was to be paid with effect from 30 December 1997 at 30% of general rate. The subsequent decision recognising chronic solar skin damage as war-caused (T19) resulted in payment from 1 July 1999 at 40% of general rate.
On 16 June 1998 the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the decision to reject the disability of hypertension as war-caused (T12). On 27 July 1998 the DVA refused the Applicant a review under s 31 of the Act (T14), convinced that the claim for hypertension should not succeed.
On 3 August 1999 the VRB decided (T16) to adjourn its hearing of the application for review at the request of the Applicant's advocate. On 24 February 2000 the VRB decided (T21) to affirm the Respondent's decision to reject the Applicant's claim in respect of hypertension. It also decided that the rate of payment should be 40% of general rate from 30 December 1997. The VRB found against the Applicant as regards hypertension for several reasons. The Applicant argued that he suffered from alcohol abuse or dependence before the clinical onset of hypertension, this being one of the accepted factors for hypertension in the relevant Statement of Principles ("SoP") concerning hypertension issued by the Repatriation Medical Authority under s 196B of the Act.
The VRB found that the Applicant's hypertension commenced in 1981. It applied SoP nos 83 and 84 of 1995 on hypertension. These required that the Applicant was suffering from psychoactive substance abuse and dependence involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension. The VRB was not convinced that the Applicant's alcohol abuse was linked to any operational service and was uncertain that the condition had come on before his hypertension.
The VRB sent a letter dated 3 March 2000 to the Applicant (T22) to notify him of its decision. On 26 April 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review (T1) of the VRB's decision.
Relevant legislationLegislation relevant to this application consists of the following provisions from the Veterans' Entitlements Act 1986 ("the Act"):
sections 6C(1), (1)(a), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 68(1) "defence service", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2)(a), (c), (d), (e), 72(1), 120(1), (3), (4), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.
"6C Operational service - post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
…"
"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;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"68 Interpretation
(1) In this Part, unless the contrary intention appears:
…
defence service means:
(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b) in the case of a person who:(i) was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii) continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii) was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:(iv) the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v) the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
(c) hazardous service rendered before or after the terminating date;
but does not include any period of peacekeeping service;
…
member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A;
…"
"69 Application of Part to members of the Forces
(1) Subject to this section, where a person:
(a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c) if the person:(i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii) has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
…"
"70 Eligibility for pension under this Part
(1) Where:
…
(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
…"
"71 Application of certain provisions of Part II
(1) Divisions 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
(2) For the purposes of the application of Divisions 3, 6 and 7 of Part II as provided in subsection (1):
(a) a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
…
(c) a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(d) a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and
(e) a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.
…"
"72 Dual entitlement to pension
(1) Where a member of the Forces or a member of a Peacekeeping Force is also a veteran, the member is not entitled to receive, at the same time:
(a) a pension under this Part; and
(b) a pension under Part II of this Act;
in respect of his or her incapacity from the same injury or disease.
…"
"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.
…(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.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
…(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
…(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…"
"196B Functions of Authority
(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…"
"196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."
Further statutory instruments relevant to this matter are the Statements of Principles no 83/1995 concerning hypertension and no 84/1995 concerning hypertension.
Statement of Principles concerning Hypertension No 83 of 1995
"1. Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:
…
(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(x) must be related to any service rendered by a person.
…
4. For the purpose of this Statement of Principles:
"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions. As stated in The Management of Hypertension: a consensus statement The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain accurate measurement of blood pressure, the conditions for measurement should be standardised as much as possible before readings by ensuring the following:
· a mercury sphygmomanometer should be used in the diagnosis of hypertension;
· patients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
· the bare arms should be supported and positioned at heart level;
· a cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. the bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
· the cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
· in older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudohypertension);
· the cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
· if initial readings are high, several further readings should be taken after five minutes of quiet rest;
· on each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
· For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;
…
"hypertension" means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg;or
(b) where treatment for hypertension is being administered, attracting an ICD code in the range 401 to 405;
"ICD code" means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
…"
Statement of Principles concerning Hypertension No 84 of 1995
"1. Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that hypertension and death from hypertension can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of that service, are:
…
(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the …2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(w) must be related to any service rendered by a person.
…
4. For the purpose of this Statement of Principles:
"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions. As stated in The Management of Hypertension: a consensus statement The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain an accurate measurement of blood pressure, the conditions should be standardised as much as possible before readings by ensuring the following:
· a mercury sphygmomanometer should be used in the diagnosis of hypertension;
· patients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
· the bare arms should be supported and positioned at heart level;
· a cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. the bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
· the cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
· in older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudohypertension);
· the cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
· if initial readings are high, several further readings should be taken after five minutes of quiet rest;
· on each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
· For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;
…
"hypertension" means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b) where treatment for hypertension is being administered, attracting an ICD code in the range 401 to 405;
"ICD code" means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
…"
Hearing and appearances
The Tribunal convened a hearing in Sydney on 2 August 2001. Mr Paul Jones, an advocate from Rockliffs Solicitors and Attorneys, represented the Applicant. Mr Stephen Modder from the DVA represented the Respondent.
The Tribunal admitted the following documents into evidence:
Exhibit TD1 – Section 37 Statement and associated documents, 24 May 2000.
Exhibit A1 – Report by Dr J Farrar, cardiologist, 24 July 2000.
Exhibit A2 – Letter from Applicant's solicitor to Dr Farrar, 13 September 2000.
Exhibit A3 – Supplementary report by Dr Farrar, 11 October 2000.
Exhibit A4 – Letter from Applicant to Applicant's solicitor, 4 December 2000.
Exhibit A5 – Supplementary report by Associate Professor R P Mattick, psychologist, 23 March 2001.
Exhibit A6 – Applicant's statement of facts and contentions, 9 May 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 1 August 2001.
Exhibit R2 – Report by Associate Professor Mattick, 15 August 2000.
Background
The Applicant was born on 19 August 1949.
The Applicant told Dr Koller (T13) that he attended school to intermediate certificate level and then joined the Army at the age of 17. He served on two tours of Vietnam in the Artillery, once in 1970 and once in 1972, rendering eligible service (also operational service) from 10 November 1970 to 15 December 1970 and from 10 May 1972 to 18 December 1972 (T16). The Applicant has been married for 23 years and has a son and a daughter. The Applicant is still serving in the Army.
Documentary medical and other evidenceOn 2 February 1981 the Applicant was diagnosed with hypertension by an Australian Army doctor (T3). He was referred to a physician for a further review. Further Army medical records in T3 note the Applicant's hypertension and blood pressure readings and the ongoing treatment that he was receiving for this condition.
On 11 February 1994 Dr Davies, psychiatrist, diagnosed the Applicant as suffering from PTSD (T4). She also noted the Applicant's change in behaviour upon his return from Vietnam and that he used beer as a sedative. The Applicant at the time of the report was "having difficulty coping". His wife had also noticed a change in his personality since his return from Vietnam. Dr Davies diagnosed PTSD with a 20% impairment rating.
On 20 December 1995 Dr Gunawardane, cardiologist, reported on the Applicant (T3, folios 14-15). He noted that hypertension was first diagnosed when the Applicant was 31 years old. He further noted that the Applicant had commenced taking Tenormin for his hypertension in April 1995 but he had been irregular in taking the medication. Dr Gunawardane stated that the Applicant had never smoked and that he drinks 4-6 beers 3 times a week.
On 12 July 1996 Dr Gunawardane noted that the Applicant's thallium scan was "completely normal" (T3, folio 21). His blood pressure was assessed as being well controlled.
On 15 August 1996 (T3, folio 19) a Department of Defence medical officer noted the Applicant's family history of hypertension and that his heart was anatomically and functionally normal.
On 1 September 1997 a Department of Defence medical officer noted that the Applicant had been treated for moderate hypertension for years and that it was well controlled with Tenormin taken on a daily basis (T3, folio 16). The Applicant was recorded as being "symptom free and functionally no interference with daily activities."
On 7 May 1998 Dr Stanford completed a medical impairment assessment report in respect of the Applicant's PTSD (T6, folio 93). He noted that the Applicant was depressed on occasions, had lost confidence and that he was having difficulty continuing normal activities. It was reported that the Applicant "avoids crowds, does not mix socially and finds work difficult." Further to this, the Applicant was said to experience "sudden outbursts with family" and feel a social loss of communication. He will not attend social activities. Dr Stanford also reported a minor loss of thoraco-lumbar spinal movement, with a backache present most of the time.
On 19 June 1998 Dr Koller, psychiatrist, reported on the Applicant (T13). He noted the Applicant's family and service history. Dr Koller diagnosed generalised anxiety disorder "that has been discernible since two tours of Vietnam." Dr Koller provided a combined medical assessment of 33 points.
On 4 September 1998 Dr Koller reviewed the Applicant (T16, folio 135). He stated that "there has been little or no change." He reiterated his impairment rating of 33 points.
On 8 October 1999 Dr Dent, consultant psychiatrist, provided a report on the Applicant (T18). He noted the Applicant's daily intake of six to ten schooners of beer and considered that this "is certainly abuse of alcohol and dependence upon alcohol…" The use of alcohol was the Applicant's way of dealing with stressful events. The Applicant had not taken alcohol before joining the army and going to Vietnam. He further stated that alcohol intake has no effect on his memory or concentration, but it does cause him to become irritable and to have outbursts of anger. Dr Dent noted that the Applicant does not suffer from withdrawal symptoms and is very tolerant of the large quantities that he drinks. The Applicant remarked upon the "culture of cheap alcohol" as a means of dealing with stress and that drinking was a way of life in the Army.
Dr Dent reported that the Applicant was suffering from PTSD, in addition to satisfying the requirements of the SoP concerning alcohol dependence. He stated that the Applicant "fulfils the diagnostic criteria in almost every detail, not just 3 of the required DSM IV criteria, but many more than that…the diagnosis is certain in this sense." It was Dr Dent's opinion that the Applicant meets the criteria for experiencing a severe stressor in that there was serious of threat of death or injury. His ultimate medical impairment assessment came to 35 points, broken down as follows:
· Subjective distress 10 points
· Manifest distress 10 points
· Functional effects 0 points
· Occupation 0 points
· Domestic situation 5 points
· Social interaction 5 points
· Leisure activities 5 points
· Total 35 points
On 24 July 2000 Dr Farrar, consultant cardiologist, reported on the Applicant (Exhibit A1). Dr Farrar noted the Applicant's war service and that he had the accepted condition of PTSD. He noted two particular episodes in respect of the Applicant's service. The first was when he was admitted to a military hospital following an inappropriate drug dose and where the Applicant was surrounded by army casualties. The second of these was the incident when the Applicant was on guard duty and a nearby ammunition dump was destroyed. Dr Farrar was of the opinion that "there seems to be little doubt that Nolan has a dependence on alcohol" and that in regard to hypertension, family history of the condition can be a contributing factor.
On 15 August 2000 Professor Mattick, a psychologist, provided the first of his two reports on the Applicant (Exhibit R2). He noted the Applicant's hypertensive conditions that were detected in the late 1970s and then again diagnosed in 1995. Professor Mattick also took a detailed history of the Applicant's service history and alcohol consumption. The Applicant started drinking when he joined the Australian Army at the age of 17. He drank regularly from this time, drinking upwards of five or six cans of beer a night and as many as 10. By the time he had been transferred to Woomera in 1967, the Applicant was drinking 15 standard drinks a day. As well as drinking in the mess canteen, he drank at a number of clubs in the area and this drinking habit included weekends. Professor Mattick established that prior to going to Vietnam the Applicant was regularly drinking between 13 and 15 standard drinks a day. This equates to approximately 100 standard drinks a week. He also took a history from the Applicant that, whilst travelling on the Army vessel to Vietnam for his first tour of duty, he drank the equivalent of eight standard drinks a night. Upon his return from Woodside after his initial Vietnam service he drank the equivalent of 16 standard drinks a day for a period of some two years. The Applicant maintained this alcohol intake upon his return to Vietnam. The Applicant was stationed in Kapooka in 1987 and Professor Mattick noted that there was no difference in his alcohol consumption before and after operational service. He also noted that the Applicant, when stationed at Ingleburn in 1997/1998, cut down his alcohol consumption to eight schooners of beer three to four times a week. He did this because he had the use of a military vehicle which he would drive home.
Professor Mattick was of the opinion that the Applicant did not meet the criteria for substance dependence and abuse because he continues to meet his obligations in the home and in the workplace and in fact has had a very successful career. The Applicant also denies persistent and recurrent social or interpersonal problems caused or worsened by drinking. Professor Mattick was of the opinion that, even were the Applicant to be found to meet the criteria for substance abuse, it would be difficult to link this condition to operational service. He also found that the Applicant has never met the criteria for PTSD.
On 13 September 2000 the Applicant's representative wrote to Dr Farrar asking him to comment on whether it was reasonable to hypothesise that the Applicant's hypertension was caused by alcohol consumption which was in turn caused by PTSD (Exhibit A2).
On 4 December 2000 the Applicant signed a statement in support of his application for review. (Exhibit A4). He confirmed his feelings of fear and helplessness in Vietnam whilst travelling up narrow waterways as well as on guard duty in Saigon. The Applicant stated that, prior to Vietnam, recruits were not allowed to drink any more than two or three cans (or three glasses) of beer. Alcohol consumption was controlled and regulated, with no one being allowed to drink each night. Further to these statements, the Applicant does indeed suffer from withdrawal phenomena including sweating, pulse racing, hand tremors and nausea. The Applicant finds it difficult to sleep unless he has been drinking. He stated that he has driven home "on numerous occasions after heavily drinking".
On 23 March 2001 Professor Mattick provided a further report on the Applicant in response to a request from Mr Jones, the Applicant's representative (Exhibit A5). Mr Jones had put to Professor Mattick, in a letter of 21 February 2001, that the history given to him for the purposes of his report of 15 August 2000 (Exhibit R2) contained a number of inaccuracies. As regards the stated history of alcohol consumption, Professor Mattick could not explain why the history given would have been inaccurate. The Applicant did not seem tense or anxious, nor was he uncooperative in the detailed interview. Further to this, Professor Mattick checked the aspects of his service, health and personal history with the Applicant. "At no time in the interview did Mr Nolan show any signs that the information he was providing was either untrue nor were there inconsistencies in his presentation." Professor Mattick did not change his opinion of the Applicant's condition based on the Applicant's objections or the discrepancies in his history. He found, based on the differences in the different doctors' reports, that "one is left wondering which report to trust."
Findings on material questions of fact with reference to the evidence and other material in support of those findingsThe Tribunal notes, or makes findings, in relation to the following relevant and uncontentious matters:
The Applicant rendered operational service from 10 November 1970 to 15 December 1970 and from 10 May 1972 to 18 December 1972. He has rendered defence service from 7 December 1972 (T16).
The Applicant lodged with the DVA a valid claim for a Disability Pension in respect of, inter alia, hypertension on 30 March 1998 (T5).
The date of effect of any decision favourable to the Applicant will be 30 December 1997 (Exhibits A6, R1 and s 20(1) of the Act).
The standard of proof in respect of the Applicant's hypertension is the reasonable hypothesis standard in s 120(1) and (3) of the Act in respect of factors attributable to operational service. It is the standard of reasonable satisfaction in respect of factors linked to defence service (s 120(4) of the Act).
The relevant SoPs are SoP no 83/1995 (operational service) and no 84/1995 (defence service) concerning hypertension (Exhibit A6)
At the commencement of the hearing the representatives advised the Tribunal that they had reached agreed positions on a number of additional matters:
The Applicant's alcohol consumption began prior to his operational service.
The Applicant experienced stressful service in Vietnam.
PTSD has been accepted as a war-caused disease.
There was alcohol consumption after operational service.
The onset of the Applicant's high blood pressure was in about 1981. The Applicant discontinued medication for hypertension during 1984 to 1994.
The SoP concerning psychoactive substance abuse and dependence that may be relevant is SoP no 5/1994.
While the Tribunal is not bound by such agreements as between the parties, it can certainly take them into account in making its own findings.
The Tribunal will consider whether the Applicant's alleged disability of hypertension can be attributed to his operational service in the first instance. There will then be no need to consider its relationship (if any) to defence service if it is linked to operational service. As a result of the decision of the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 it will be necessary to answer the following questions:
Question 1 – Is there a hypothesis linking the Applicant's hypertension with operational service?
Question 2 – If the answer to question 1 is yes, is there a relevant SoP?
Question 3 – If the answer to question 2 is yes, does the Applicant's hypothesis conform to the requirements in the SoP?
Question 4 – In order to answer question 3 one must ask whether the Applicant suffers from hypertension according to his hypothesis?
Question 5 – If the answer to question 4 is yes, is it part of the hypothesis that the Applicant has suffered from psychoactive substance abuse and dependence involving daily consumption of alcohol?
Question 6 – If the answer to question 5 is yes, is it part of the Applicant's hypothesis that that he suffered from that psychoactive substance abuse and dependence before and continuing at least until the accurate determination of hypertension?
Question 7 – If the answer to question 6 is yes, is it part of the Applicant's hypothesis that the psychoactive substance abuse and dependence was related to the Applicant's operational service?
Question 8 – If the answer to question 3 is yes, can the Tribunal be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?
Question 1 – Is there a hypothesis linking the Applicant's hypertension with operational service?
There is such a hypothesis. The Applicant's contention is that he experienced stressful operational service in Vietnam, that this led to his psychoactive substance abuse and dependence and that that led to his developing hypertension.
Question 2 – If the answer to question 1 is yes, is there a relevant SoP?The relevant SoP is SoP no 83/1995 concerning hypertension.
Question 3 – If the answer to question 2 is yes, does the Applicant's hypothesis conform to the requirements in the SoP?For reasons given below in response to question 7, the Tribunal finds that the Applicant's hypothesis does not conform to the requirements in the SoP. The Tribunal therefore finds in accordance with the decision in the Deledio case (supra) that the hypothesis is not a reasonable hypothesis.
Question 4 – In order to answer question 3 one must ask whether the Applicant suffers from hypertension according to his hypothesis?The Applicant argues that he suffers from hypertension. That is defined in the SoP as a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or where treatment for hypertension is being administered (SoP clause 4). There is a plethora of documentary evidence before the Tribunal to support the parties' agreement that the Applicant's hypertension was present by 1981. An example is Dr Gunawardene's report in T3 (folio 14) dated 20 December 1995 which records that the Applicant's hypertension was first noted at the age of 31 (ie around 1980). Dr Gunawardene took a blood pressure reading of 180/120. The same report states that a blood pressure reading in 1994 was 160/110. In December 1995 it was 135/105. The documents indicate that he has also been medicated extensively for hypertension. Thus, not only does the Applicant assert that he suffers from hypertension, but there is substantial evidence that this is indeed the case.
Question 5 – If the answer to question 4 is yes, is it part of the hypothesis that the Applicant has suffered from psychoactive substance abuse and dependence involving daily consumption of alcohol?Yes, the Applicant alleges that he suffers from psychoactive substance abuse and dependence. The Applicant's alcohol history in support of the hypothesis, as presented to the Tribunal in oral evidence, was as follows:
He drank beer before enlisting. If his father had a party the Applicant would drink a can of beer. He enlisted at age 17 (T16).
During basic training at Kapooka he was denied alcohol until during the final four weeks.
After basic training, and prior to going to Vietnam, he would go to a bar and have possibly three beers. He did not drive if under the influence. His work was unaffected. He did not drink at lunchtime.
In 1970 he first went to Vietnam (for a little over a month). He was employed on small ships air defence. He had access to alcohol only on shore leave. Little alcohol was permitted on board the ship.
After that trip to Vietnam the Applicant was returned to Woodside barracks in South Australia where he resumed his pre-Vietnam drinking pattern.
In 1972 the Applicant was sent to Vietnam for nine months. This was the stressful period. The Applicant was lodged in a hotel and had access to a hotel bar. He drank nightly. Alcohol was cheap. Pushed by the Tribunal to provide an estimate, he said that he could have consumed a dozen cans a night but this was an unwilling estimate.
Between 1972 and 1975 the Applicant was at Woodside. He was unwilling to estimate his alcohol consumption at that time. He said that he could not "put a pinpoint on it". He said that "life just went on". He was living in barracks. Alcohol was available at lunchtimes. He would drink then and return to work for the afternoon.
The applicant was sent to Point Wakefield in 1975. He was a gun captain and lived on the base. He was president of the mess committee. His drinking habits changed. He had more time in the mess club. Drinking in the club was a way of life on the base. He would drink "a few" at lunchtime and more after work. He put the number at perhaps 10 or 12 but he did not really know for certain. He would do this unless scheduled to go shooting.
The Applicant was married in 1976. In 1978 he was promoted to sergeant. He was troop sergeant in the missile battery. He lived off base at Mt Barker. His alcohol consumption changed again. As sergeant he was expected to be seen in the mess. He would drink at lunchtime and after work. He could and did take a six-pack back with him to work after lunch. He might not return to work after lunch on a Wednesday or Friday, or both. A pattern of conduct might have involved a number of soldiers buying a six-pack each and drinking until 3.00 pm and then returning to the bar for more before travelling home. The Applicant belonged to a car pool. The passengers could stop off at a pub on the way home and stay until closing. The Applicant sometimes drove home to Mt Barker while under the influence of alcohol.
Between 1978 and 1988 the Applicant was promoted several times. He would "slow down a bit" when conscious that he was being assessed and he took medications, presumably for his hypertension, before attending medical boards. He had no counselling for alcohol abuse.
Question 6 – If the answer to question 5 is yes, is it part of the Applicant's hypothesis that that he suffered from that psychoactive substance abuse and dependence before and continuing at least until the accurate determination of hypertension?
To conform to the SoP the Applicant must have suffered from this problem before and at the time of the accurate determination of hypertension. The accurate determination of hypertension is described in clause 4 of the SoP as the accurate measurement of blood pressure on a number of occasions. In T3 there are a number of blood pressure readings: 150/100 (2 February 1981, folio 8), 140/100 (28 April 1981, folio 9), 170/120 (13 November 1981, folio 10), 170/120 (20 November 1981, folio 11), 142/96 (12 May 1982, folio 12), 140/110 (29 September 1983, folio 13). The accurate determination of hypertension was clearly no later than in 1981. This is the date submitted to the Tribunal on the Applicant's behalf.
The Applicant contends that he suffered from psychoactive substance abuse and dependence by that date. The answer to the question is therefore yes.
Question 7 – If the answer to question 6 is yes, is it part of the Applicant's hypothesis that the psychoactive substance abuse and dependence was related to the Applicant's operational service?The Applicant does contend this. He does not contend that he suffered from or developed psychoactive substance abuse and dependence while in Vietnam. His argument is that his time in Vietnam caused him psychological or psychiatric problems, according to the doctors who have certified him as suffering from PTSD, a disability accepted as war-caused. His alcohol consumption rose in Vietnam. That increase manifested itself as alcohol abuse in 1975.
SoP no 83/1995 concerning hypertension contains its own definition of "psychoactive substance abuse and dependence" in clause 4. It is a maladaptive pattern of use indicated by either continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance, or recurrent use of the substance when use is physically hazardous (eg driving while intoxicated). It is the Applicant's case that he was clearly subject to psychoactive substance abuse and dependence in 1975 at Point Wakefield where his drinking habit appeared to become chronic.
It is the Tribunal's view that the Applicant's hypothesis fails at this point in that it does not conform to the SoP. The Tribunal cannot find in the Applicant's hypothesis an explanation linking the Applicant's onset of psychoactive substance abuse and dependence in 1975 to an aspect of his operational service. As the Tribunal understands the Applicant's hypothesis concerning Vietnam it amounts only to the suggestion that his alcohol consumption was fairly heavy at a dozen cans a night. The hypothesis does not suggest any social, occupational or similar problems, or any hazardous activities resulting from his drinking.
Question 8 – If the answer to question 3 is yes, can the Tribunal be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?In view of the answer to question 7, this question is no longer applicable.
Although the Tribunal has found against the Applicant's interests in relation to his operational service, he may still succeed in respect of his defence service and its possible contribution to his psychoactive substance abuse and dependence and hypertension.
As this inquiry involves defence service the analysis is different. The Act (s 120(4)) requires that the Tribunal must be reasonably satisfied that the Applicant's hypertension is war-caused if the Applicant is to succeed. The Federal Court in Repatriation Commission v Smith (1987) 74 ALR 537, 547 held that this equates to a decision on the balance of probabilities. The Tribunal can refer directly to the relevant SoP, in this case SoP no 84/1995 concerning hypertension, to see whether, on the balance of probabilities, the Applicant's situation meets the requirements.
The requirements in SoP no 84/1995 are substantially the same as for SoP no 83/1995, which the Tribunal has already largely discussed.
The Tribunal has already found that the Applicant suffers from hypertension which was accurately determined in 1981. The Tribunal has not yet made a finding as to whether the Applicant suffers from psychoactive substance abuse and dependence.
Mr Modder, for the Respondent, addressed with the Applicant the materials that cause difficulty in his case. These were:
In T3, folio 14, Dr Gunawardane took a history in 1995 from the Applicant in which he said he drank four to six beers three times a week, considerably less than he admitted to the Tribunal. The Applicant told the Tribunal that he had understated his drinking to Dr Gunarwardene in order to protect himself and his career.
In T3, folio 50 in notes dated 17 September 1978 resulting from a hospital admission for a biopsy his alcohol consumption is described as "moderate". The Applicant told the Tribunal that that might have been the case at that time. His drinking has gone up and down over the years depending on his duties. He would drink less if safety was possibly compromised.
In T6, folio 90 a report by Dr Stanford, the Applicant's treating doctor, records that "Whilst in the army [the Applicant] consumed more alcohol due to social activities with the job".
In T18 Dr Dent, a psychiatrist, recorded the Applicant as telling him he drank six to ten schooners a day in October 1999.
Professor Mattick (Exhibit R2) took a history from the Applicant that differed from other accounts he had given of his drinking.
Professor Mattick recorded that Mr Nolan began drinking alcohol when he joined the Army. The Applicant told the Tribunal he had done some drinking before then.
Professor Mattick has a much more detailed account of the Applicant's drinking between the cessation of his training at Kapooka and his embarkation for Vietnam. The applicant told the Tribunal he drank three beers a day during this period. However, according to Professor Mattick he drank as follows:
At Kapooka he drank at the canteen and had six cans in a two hour period [this appears an isolated incident].
He drank at a hotel in Wagga where he drank alcohol all day, consuming about ten schooners or middies.
In 12 months at Holsworthy he drank at night at a canteen. He drank five or six cans. On Saturday nights he would do the same but at an RSL club.
At Woodside he drank in much the same fashion but up to 10 cans. In addition he would drink at least one or two 26 fluid oz bottles of beer at lunchtimes.
A Woomera in 1967 he drank the equivalent of 15 standard drinks a day.
He returned to Woodside in 1970 and the rate of consumption remained the same.
He told Professor Mattick that he drank six cans of beer a night in Vietnam. He told the Tribunal that he drank little at this time.
Back in Australia at Woodside, for two years the Applicant drank one or two 26 fluid oz bottles of beer each day at lunchtime. At night he had about eight schooners. He told the tribunal he resumed his pre-Vietnam drinking pattern at this time. This is also the case with his information for Professor Mattick.
On his second tour in Vietnam he told Professor Mattick that he drank 10 or 12 cans of beer a day. He estimated that he drank about this amount in his Tribunal evidence.
On his return to Australia, to Woodside, he drank 12 schooners a day, according to Professor Mattick. He was vague on his consumption at this time in his Tribunal evidence.
In 1987-88 the applicant was at Kapooka and drank 12 schooners a day.
Professor Mattick has figures for the later period, which the Tribunal will not address as they postdate the accurate determination of hypertension.
Mr Modder put to the Applicant the many inconsistencies in his evidence as given to Professor Mattick in August 2000 and as given to the Tribunal. The Applicant agreed with Professor Mattick's figures concerning Holsworthy. The Applicant denied that he drank as much at Woodside before 1967 as Professor Mattick has recorded. The Applicant said that Professor Mattick put suggestions to him and he simply agreed in order to be able to leave. As regards Woomera, the Applicant said he doubted that he drank as much as 15 drinks a day. The Applicant says now that when he returned to Woodside in 1970 he was drinking less than before because he was driving home to his accommodation. He was in a car pool and he shared the driving duties. Professor Mattick had recorded the Applicant as saying that his alcohol consumption was the same after 1972 as it had been up to 1970. This would mean that operational service had worked no change in his alcohol consumption. The applicant denied that this was the case. However, he then said that he did not count his drinks as he consumed them.
In fairness to the Applicant, after Professor Mattick's report came to hand, the Applicant wrote to his solicitor (Exhibit A4) protesting aspects of the report. In the present context he comments that he drank less alcohol than Professor Mattick reports before he went to Vietnam. However, the Applicant agreed with Mr Modder that he did not tell his solicitor that Professor Mattick had wrongly recorded what the Applicant had told him.
On the basis of the unsatisfactory nature of the applicant's evidence as to his drinking pattern it is difficult for the Tribunal to know what the accurate picture is. However, this is less of a problem in view of the Tribunal's finding that any psychoactive substance abuse and dependence affecting the Applicant was not caused by his operational service. The evidence of his drinking pattern after his second period in Vietnam is clearer.
There was a significant amount of evidence as to the effects on Mr Nolan of his alleged psychoactive substance abuse and dependence.
The Applicant told the Tribunal that his relationship with his wife had been strained because of his ambitious attitude to his work and because she said that he drinks too much. He said he had "flared up" with her at times but had not struck her. Her evidence was that when he had been drinking it would be necessary to defer any serious discussion. He came home frequently in Mt Barker in 1978 late from work, at around 10.00 pm or later. He would be orally abrupt and he had pushed her around at times. She said that she had not been badly bruised. She thought that the problems had worsened in 1978. [This was when he was promoted to the rank of sergeant.]
When at Point Wakefield between 1975 and 1978 the Applicant would drink at lunch and after work, but not on a day when he would be involved in shooting.
The Applicant drove at times while intoxicated when living at Mt Barker and working at Woodside. He did not tell this to Professor Mattick. He said that he does not recall any questions about it from the Professor and did not feel the need to tell him.
The Applicant had been disciplined once for his alcohol consumption in 1999. He returned to the base from a hotel. There was a complaint to the Applicant's supervisor. The supervisor told the Applicant to stay away if he drinks at lunchtime.
The Applicant has never been charged with assault or driving while intoxicated.
The Applicant can stay away from alcohol if he has hazardous duties to perform or when on exercises. He has not been on exercises, however, since 1993.
Professor Mattick concluded that the Applicant did not meet the criteria for substance dependence and abuse because he continues to meet his obligations in the workplace and at home. Mrs Nolan told the Tribunal, for example, that Mr Nolan had been a very good father who had been supportive of his children. The professor noted that the Applicant had enjoyed a very successful career. The Applicant denied to Professor Mattick that any persistent and recurrent social or interpersonal problems were caused or worsened by his drinking.
Other experts, Drs Dent (T18) and Farrar (Exhibit A1), have considered that the Applicant suffers from psychoactive substance abuse and dependence. It is perhaps too simple for the Tribunal to prefer the views of the medically qualified experts over the opposite view of Professor Mattick, a psychologist. Professor Mattick's report is thorough and, assuming the history to be accurate, convincingly reasoned. However, the problem with Professor Mattick's report is that he wrote it without the benefit of some of the evidence available to the Tribunal about the effect of the Applicant's alcohol consumption on his family and on wider society. Professor Mattick was unaware of the domestic difficulties resulting from Mr Nolan's drinking. He was also unaware that the Applicant had driven while intoxicated.
The Tribunal finds itself reasonably satisfied that the definition of psychoactive substance abuse and dependence in SoP no 84/1995 is satisfied. The Applicant has continued to drink despite knowledge of having a persistent or recurrent social problem (with his wife) that is caused or exacerbated by use of alcohol. Additionally it can be said that he has recurrently used alcohol when use was physically hazardous when he drove while intoxicated.
The Tribunal finds that the date of onset of his psychoactive substance abuse and dependence was 1978, or some time prior to that date. This is based on the evidence of both Mr and Mrs Nolan, Mr Nolan's evidence about driving while intoxicated, and Mrs Nolan's evidence about the worsening of marital discord. The Tribunal further finds that the condition of psychoactive substance abuse and dependence is continuing, although that is not strictly necessary according to the SoP. For the purposes of the SoP, the Applicant must have suffered from psychoactive substance abuse and dependence when his hypertension was accurately determined in 1981. The Tribunal finds on the basis of the above evidence that this requirement is met.
It remains only to ascertain whether the Applicant's psychoactive substance abuse and dependence is related to his defence service (clause 2 of the SoP). In summary, the Applicant's evidence of the culture of which he was a part in the 1970s, a culture in which lunchtime drinking, afternoons off because of drinking, a culture in which a sergeant is expected to be seen in the mess where drinking takes place, is sufficient to satisfy the Tribunal that it was the conditions of his service that fostered Mr Nolan's psychoactive substance abuse and dependence.
ConclusionThe Tribunal has found that the Applicant suffered from psychoactive substance abuse and dependence from 1978. It has further found that he was suffering from that disease in 1981 when his hypertension was accurately determined. The Tribunal has found that the Applicant's psychoactive substance abuse and dependence is related to his defence service. The Applicant's hypertension is therefore a war-caused disease in the view of the Tribunal.
DecisionThe Tribunal sets aside the decision under review and in substitution therefor decides:
that the Applicant's disease of hypertension was war-caused.
that this decision is to take effect from 30 December 1997.
that the matter is remitted to the Respondent for it to assess the rate of Disability Pension to be paid to the Applicant.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella and Dr P D Lynch, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 2 August 2001
Date of Decision 16 August 2001
Representative for the Applicant Mr Jones
Representative for the Respondent Mr Modder
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