PETER GLANVILLE HARRIS and REPATRIATION COMMISSION

[2009] AATA 631

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 631

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2008/1177

VETERANS'       APPEALS        DIVISION		)
Re		PETER GLANVILLE HARRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C. Ermert, Member

Dr R. McRae, Member

Date25 August 2009

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) C. Ermert

Member

VETERANS’ AFFAIRS ‑ operational service ‑ diagnosed conditions of alcohol abuse, hypertension, atrial fibrillation, cardiomyopathy, peripheral neuropathy and gout – diagnostic criteria for alcohol abuse – whether other conditions war-caused - four stages of Deledio reasoning ‑ hypothesis connecting conditions with operational service ‑ Statements of Principles ‑ whether hypothesis fits Statement of Principles – alcohol consumption not war-caused – hypertension not war-caused – as a consequence other conditions not war-caused – decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196A, 196B

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation v Tuitte (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

25 August 2009

Brigadier C. Ermert, Member

Dr R. McRae, Member

INTRODUCTION

1.       Mr Peter Glanville Harris, the applicant, graduated from the Royal Military College, Duntroon (Duntroon), in December 1944 and was posted to the Australian Army Service Corps in Geelong.  While there he started to drink alcohol regularly at the Officers’ Mess.  While at Geelong Mr Harris learned of the death of Lieutenant Cornish, one of his former Duntroon classmates, but a man with whom he did not maintain contact.  Lieutenant Cornish was killed while attempting to dislodge a bomb which had become jammed in the barrel of a mortar.  Mr Harris claims to have been shocked and horrified as he was able to visualise what had occurred.  As a result Mr Harris increased his consumption of alcohol. 

2.       Mr Harris was subsequently transferred to the Atherton Tablelands and later to Wewak in Papua New Guinea.  He continued to have ready access to alcohol during that time.  While in Wewak Mr Harris was apprehensive because of his proximity to the Japanese and a concern that Japanese soldiers who had not surrendered remained in the hills and may have represented an ongoing danger.  On no occasion did Mr Harris see the enemy.  After the end of hostilities Mr Harris served in Kure, Japan, with the Occupation Forces.  While there he moderated his consumption of alcohol, he continued to drink heavily in the evenings after duty.  While in Japan Mr Harris visited Hiroshima and was disturbed by the sight of the outline of human buttocks on a stone.  He was horrified by the thought of people melting away by the heat of the nuclear explosion.  By the end of his period of service Mr Harris was drinking daily and excessively. 

3.       On returning to Australia, Mr Harris studied at Melbourne University for a law degree.  He drank heavily while at university.  He graduated with a law degree.  He continued to drink heavily until he met and married his wife in 1950.  Mr Harris decreased his consumption of alcohol for about six to twelve months but then increased again.  His level of drinking has remained generally unchanged to the present. 

4.       Mr Harris suffers from a number of medical conditions including peripheral neuropathy, cardiomyopathy, atrial fibrillation, atrial flutter, gout, alcohol abuse and hypertension.  Mr Harris lodged a number of claims with the Repatriation Commission (the respondent) alleging these conditions were war-caused and seeking an increase in pension.  The claims were refused by a delegate of the respondent.  However, Mr Harris’ pension was increased to 90 per cent of the General Rate.  Mr Harris applied for a review of the decisions by the Veterans’ Review Board (VRB).  On 26 February 2008 the VRB affirmed all the decisions.  This is an application for review of the VRB decision. 

THE HEARING

5.       At the hearing Mr Harris was represented by Ms Judith Bornstein, barrister, instructed by Williams Winter Solicitors.  The respondent was represented by Mr Ken Rudge, an Advocate with the Department of Veterans’ Affairs.  The Tribunal heard evidence from Mr Harris.  The Tribunal had before it the documents submitted by the respondent pursuant to s 37 of the Administrative Appeals Act 1975 (the T‑documents).  The Tribunal took into evidence a statement by Mr Harris.  For the respondent, the Tribunal took into evidence reports by Dr Geoff Markov, rheumatologist, Professor Richard Harper, cardiologist, Dr Mark Page, physician, and clinical notes from Mr Jesse Das and Dr Andrew Gault.  The Tribunal also took into evidence reports from Mr Robert Piper, military historian, and the transcript of the VRB hearing. 

THE ISSUES

6.       The first issue to be determined in this case is the diagnoses of the conditions claimed by Mr Harris.

7.       The second substantive issue is whether those conditions are war-caused. The parties agree that if the Tribunal finds that one or more of the claimed conditions is war-caused the Tribunal should remit the matter back to the respondent for determination of the disability pension to be paid.

WHAT ARE THE DIAGNOSES OF MR HARRIS’S CONDITIONS?

8.       The Tribunal’s first task is to determine the diagnoses of Mr Harris’s conditions.  The standard of proof to be applied is to the Tribunal’s reasonable satisfaction (Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690). Consistent with these cases, in Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:

…When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: …

9.       The conditions to be considered are alcohol abuse, hypertension, atrial fibrillation, cardiomyopathy, peripheral neuropathy, and gout.  The claim for atrial flutter was not pursued at the hearing. 

10.     There is no dispute between the parties as to the diagnoses of the claimed conditions, with the exception of alcohol abuse.  The Tribunal notes the medical evidence available on the existence of each of the other conditions.  Accordingly, the Tribunal is reasonably satisfied that Mr Harris suffers from hypertension, atrial fibrillation, cardiomyopathy, peripheral neuropathy, and gout. 

Diagnosis of alcohol abuse

11.     Alcohol abuse, in this context, is defined in the Statements of Principles (SoP) (an explanation of SoPs follows below).  In this case the relevant SoPs are Instruments Nº1 of 2009 and Nº 76 of 1998.  The diagnostic criteria for alcohol abuse in both SoPs are:

A.    A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12 month period:

(1)  Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).

(2)  Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).

(3)  Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).

(4)  Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).

B.    The symptoms have never met the criteria for alcohol dependence.

12.     In her submissions on the diagnosis of alcohol abuse, Ms Bornstein referred to the report of Dr Newlands dated 11 January 2007 (T‑documents, page 243).  Dr Newlands says of Mr Harris:

… he suffers from a maladaptive pattern of alcohol use leading to clinically significant impairment or distress as manifest by the fact that he continues to use alcohol in a situation where it is physically hazardous, that is of danger to his health.  He has not failed to fulfil major role obligations, nor has he had any alcohol related legal problems.  His use of alcohol has not caused social or interpersonal problems.  

13.     Ms Bornstein said that Dr Newlands considered that the diagnostic criteria were met when Mr Harris continued to consume alcohol despite having a heart problem and despite being fully aware of the difficulties this could cause him. 

14.     In his written submissions, Mr Rudge contended that Mr Harris’ condition does not meet the diagnostic criteria contained in the relevant SoP.  Mr Rudge submitted that:

…the evidence given by Mr Harris was of a happy family life; successful working life as a solicitor; engagement in charitable work with Rotary, Kiama and as a Bishop’s Advocate; and regular church attendance. 

Mr Rudge submitted that there was no evidence that met the diagnostic criteria.  However, he did go on to say that:

If “recurrent alcohol use in situations in which it is physically hazardous” existed at all, it was in the 1990’s when the cardiac conditions and peripheral neuropathy were first suffered. 

15.     The Tribunal has no evidence that would meet the provisions of diagnostic criteria A(1), (3) or (4).  The only criterion under consideration is A(2), requiring recurrent alcohol use in physically hazardous situations.  The Tribunal notes the contentions of Ms Bornstein but finds that it has no evidence before it that consuming alcohol is physically hazardous for someone with heart problems.  The Tribunal notes also that the contention of alcohol use being hazardous to health is a very different proposition to the examples used in the SoP.  There is no evidence that such alcohol use involves a risk of harm from the performance of activities while impaired due to the consumption of alcohol. 

16.     Accordingly, the Tribunal finds that the alcohol abuse diagnosed by Dr Newlands does not meet the diagnostic criteria defined in the relevant SoP.  Therefore,  the Tribunal is reasonably satisfied that Mr Harris does not suffer from alcohol abuse as defined for application to the Veterans’ Entitlements Act 1986 (the Act).  As a consequence, Mr Harris’ application for acceptance of alcohol abuse as a war-caused disability fails at this point.

ARE MR HARRIS’S DIAGNOSED CONDITIONS WAR‑CAUSED?

17. The question of whether an injury or disease is taken to be war‑caused is covered in s 9 of the Act. This section provides that:

(1)Subject to this section and section 9A, 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; …

18.     There was no disagreement that Mr Harris’s period of service constituted operational service as defined in the Act. Thus, the question of whether his claimed conditions are war‑caused is to be determined by applying s 120(1) and s 120(3) of the Act. Those sections provide that:

(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.

19. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has determined an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which relevantly provides:

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.

20. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides, in effect, that:

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; or

…

(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.

…

21. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in s 196B(14) of the Act. Section 196B(14) provides that:

A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)it arose out of, or was attributable to, that service;

…

22. Where a condition is the subject of an SoP the Tribunal must apply the test prescribed by s120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8, in the following way:

1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

23.The Tribunal will consider each condition in turn.

Hypertension

Step 1 – Does the material point to a hypothesis connecting mr harris’s hypertension with his operational service?

24.     The hypothesis advanced on behalf of Mr Harris is that he developed an alcohol habit as a result of his operational service and consumed such a quantity of alcohol over time that he developed hypertension.  Mr Harris’s evidence is that he drank alcohol on only a social basis prior to his service.  He started to drink alcohol in the Officers’ Mess at Geelong because everyone else did and I was upset at … missing out on my choice of unit to go to (Transcript page 30).  In his witness statement Mr Harris said that he tended to drink more after he heard of the death of Lieutenant Cornish, a fellow Duntroon graduate.  Mr Harris states that during the course of his service he developed an alcohol habit, consuming alcohol at an increasing rate and continuing to consume significant quantities of alcohol thereafter.  Mr Harris gave evidence of the ready availability of alcohol throughout his period of service and the peer group pressure to drink alcohol.  Exhibit R5 is a report prepared by Mr Robert Piper, a military historian.  In it he says:

… there is no doubt that many young Australians commenced drinking, or were introduced to alcohol by older companions, during World War II.  … it was a part of the growing up culture of the services.  Indeed not to drink with one’s mates could mean being ostracised and “left out” of the group. 

25.     Mr Harris gave evidence that, although he reduced the amount of alcohol he consumed for a period of six to twelve months in 1950, about the time he was married, at no time did he stop drinking.  The respondent conceded that the amount of alcohol consumed by Mr Harris over his lifetime is sufficient to meet the requirements of the relevant SoP for hypertension.  This indicates that the amount of alcohol consumed is sufficient to be a factor in the onset of hypertension. 

26.     The Tribunal is satisfied that there is material pointing to a hypothesis connecting Mr Harris’s hypertension with his operational service. 

Step 2 – Is there an sop in force which deals with the relevant condition?

27.     Instrument Nº 35 of 2003, as amended by Instruments Nº 3 of 2004 and Nº 11 of 2008, concerns hypertension and is in force.

Step 3 – Does the hypothesis fit the template of the sop?

28.     Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the RMA has determined to be the minimum which must exist and must be related to the person’s service.

29.     The relevant risk factor in this case is factor 5(b) of Instrument Nº 35 of 2003, which states in its most recently amended form:

(b) consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension;

30.     Mr Harris’s evidence is that, after a six to twelve month decrease in about 1950, his drinking increased again and from 1980 onwards he was drinking one and a half to two bottles of whisky per week.  He also had wine with his dinner.  His evidence is that he has maintained this level of drinking since then and currently drinks one stubby of light beer, two glasses of sherry and a glass of red wine per night. 

31.     The respondent accepts that from 1980 to 1995 Mr Harris drank at least 10 standard drinks of alcohol per day and that he had a gradual increase in his consumption from the late 1950s to 1980.  The respondent concedes that in 1975 Mr Harris satisfied the alcohol consumption rate in the amended SoP for hypertension, and the Tribunal finds accordingly.

32.     Thus the issue to be determined is whether Mr Harris’s alcohol consumption is related to his service.

33.     On this issue, Ms Bornstein submitted that Mr Harris developed an alcohol habit from consuming increasing amounts of alcohol during his service and he continued to consume significant quantities of alcohol thereafter.  Ms Bornstein referred to the evidence of Mr Harris that he started to drink regularly in the Officers’ Mess at Geelong because of the peer pressure from his fellow officers, the ready availability of alcohol and because there was nothing else to do.  Ms Bornstein referred also to the death of his friend, Lieutenant Cornish, and the stressor for Mr Harris of visualising the circumstances of his death.  Ms Bornstein submitted that Mr Harris’s alcohol consumption increased after that event. 

34.     Ms Bornstein submitted that Mr Harris continued to consume alcohol heavily until and after his discharge.  Ms Bornstein also referred to Mr Piper’s report (Exhibit R5), in which Mr Piper said that peer pressure plays a large part of the drinking alcohol equation service life for both the enlisted ranks and officers. 

35.     In regard to Mr Harris reducing his alcohol consumption in the 1950s Ms Bornstein submitted that at no stage did his habit of consuming alcohol cease.  In her written submissions, Ms Bornstein contended that:

The material points to the Applicant developing a habit of alcohol consumption arising out of or in the course of his service which continued after his discharge.  The reduction in his consumption for a relatively short period does not point to the causal nexus with service being broken. 

36.     Ms Bornstein contended that the issue in this case is analogous to Repatriation v Tuitte (1993) 39 FCR 540 (Tuitte), where the central issue was whether a veteran’s smoking habits were war-caused.  She stated:

The majority in Tuitte concluded that the circumstances and incidents of camp life were clearly capable of having a cause or influence upon the veteran’s decision to take up smoking, and upon his continuous (sic) in the habit until the inevitable onset of nicotine addiction.  Davies J, who agreed with the joint judgement, specifically held that:

If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life.  The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

37.     Ms Bornstein submitted that Mr Harris’s service made a contribution to his drinking habit and that there is a causal connection between his habit and the circumstances of his service.  Ms Bornstein cited the judgments in Roncevich v Repatriation Commission (2005) 222 CLR 115 (Roncevich) and Repatriation Commission v Law (1980) 31 ALR 140 (Law).  In Roncevich, the majority in the High Court held that:

A causal link alone or a causal connection is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

38.     Ms Bornstein further submitted that this is consistent with the authority of Law (affirmed on appeal to the High Court (Repatriation v Law (1981) 147 CLR 635)) in which the Full Court in interpreting the words attributable to said:

It seems clear that the expression “attributable to” in each case involves an element of causation.  The cause need not be the sole or dominant cause.  It is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. 

39.     In his written submissions Mr Rudge contended that the causal nexus between Mr Harris’s alcohol consumption and his operational service was broken by the greatly reduced consumption between the end of 1948 and the late 1950s.  Mr Rudge submitted further that Mr Harris’s circumstances did not come within the principles outlined in Roncevich where the applicant suffered an injury from a fall while intoxicated. In that decision their Honours said at 125:

There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants’ Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks.

40.Mr Rudge continued:

In the present case, there was no evidence of a requirement and expectation of attendance at the Officers’ Mess and the consumption in some quantity of alcoholic drinks.  When asked questions about requirement or expectations to attend and drink in the Mess, Mr Harris denied such a requirement or expectation.  He said it was merely something they did after hours.

As was held in Roncevich, the connection between service and alcohol consumption “must … be causal and not merely temporal one”. The respondent submits that, on the evidence of Mr Harris, the connexion was not causal in the sense described by the High Court in Roncevich.

41.     In his written statement dated 16 April 2008 (Exhibit A1) Mr Harris said that prior to his enlistment he was an occasional beer drinker.  Apart from when he was on leave, he did not drink alcohol while at Duntroon.  After Duntroon he was posted to Geelong where he started to drink regularly in the Officers’ Mess.  The reasons Mr Harris gave for drinking were peer pressure, boredom and the ready availability of alcohol.  He said that he would meet friends, pass the evening with them chatting and drinking.  Mr Harris also said that he tended to drink more after he heard of the death of his friend.  Mr Harris said that he continued drinking throughout his service.  By the end of his service, he was drinking beer and spirits daily and excessively.  Mr Harris went on to study law at Melbourne University and continued to drink heavily until he met his wife.  He said that for a period of about six to twelve months he decreased his consumption of alcohol to a glass of wine with dinner and a few beers with his father after work.  Mr Harris said that after about six to twelve months his consumption of alcohol increased again. 

42.     In his oral evidence Mr Harris confirmed that he started drinking alcohol while at Geelong because everyone else did and because he was upset at missing out on a posting to his unit of choice.  In regard to the effect of the death of Lieutenant Cornish on his alcohol consumption, however, Mr Harris agreed in his oral evidence that he had been drinking heavily even before the Cornish incident (Transcript page 35).

43.     He also said that he drank to go along with the crowd.  Mr Harris said the he did not remember any functions at the Officers’ Mess in Geelong which he was expected to attend.  He said that when he was posted to Japan he would act more circumspectly in the officers’ mess due to the presence of senior officers.  He said that he would decrease the quantity he was drinking or spread his drinking out over a longer time. 

44.     Mr Harris agreed that there was a period of about ten years, starting from the end of 1948 when he went home to Portland, that he reduced his consumption of alcohol due to the influence of his wife and her father.  He said it gradually increased again after that.  When asked why he drank, Mr Harris agreed that he enjoyed drinking.  Mr Harris also said that after an evening without alcohol his body was telling him that he needed a drink and he would have a nightcap of whisky when he got home. 

45.     In her report (T‑documents pages 237 to 245) Dr Newlands recorded a history that Mr Harris’s drinking habit diminished somewhat after he met his wife in 1949 and maintained less of an alcohol problem for some years after marriage.  Dr Newlands diagnosed alcohol abuse.  She went on to state:

… the only likely diagnosis he has is that of Alcohol Abuse.  He does not have any other psychiatric diagnoses.  The acceptance of this diagnosis would depend upon whether his hearing about the details of his friend’s death would constitute being confronted by it or not.  It that is the case, then he does have grounds for linking his alcohol worsening to this, but if not, then he does not have a condition recognized as compensable.

46.     An essential element of Ms Bornstein’s submissions was that Mr Harris developed a drinking habit as a result of his service, and that his continued drinking as a result of this habit led to the development of his hypertension. 

47.     The Tribunal finds no evidence that Mr Harris developed a drinking habit as a result of his operational service.  The Tribunal accepts the evidence of Mr Harris that prior to his enlistment he drank very little alcohol; and he did not start drinking regularly until his posting to Geelong.  The Tribunal puts no weight on the submission that Mr Harris’s drinking increased due to the stressor of the death of his friend as his own evidence was that he was drinking heavily even before that incident.  The Tribunal accepts Mr Harris’s evidence of alcohol consumption during his time in the Army.  The Tribunal notes, however, that Mr Harris was able to control his drinking.  When in Japan Mr Harris controlled his drinking because of the presence of senior officers.  When he met his wife, and for approximately 10 years thereafter during the 1950s, Mr Harris controlled his drinking.  From his own evidence Mr Harris chose to drink because he enjoyed it. 

48.     The evidence before the Tribunal is that Mr Harris drank alcohol because he chose to do so, not because of an addiction.  Indeed Dr Newlands’ report is clear that Mr Harris has no other psychiatric diagnoses other than alcohol abuse.  That statement clearly excludes the possibility of Mr Harris suffering from an alcohol dependence. 

49.     The Tribunal considers that it is the element of addiction that distinguishes this case from that of Tuitte.  In Tuitte the veteran began smoking during his Army training which contributed to the onset of nicotine addiction.  In this case there is no evidence that Mr Harris developed an alcohol addiction, indeed the evidence of Dr Newlands specifically rules this out. 

50.     The Tribunal finds that this case is also distinguished from that of Roncevich.  An important element in that case was that the applicant was living in the Sergeants’ Mess, where there was an obligation to attend functions, at which there was a strong expectation that he would drink alcohol with his peers.  Mr Roncevich’s injuries were occasioned by the direct consequence of his being intoxicated after one such function.  In this case, there is no evidence of Mess functions in which Mr Harris was obliged or expected to participate.  Mr Harris’s evidence was that he drank alcohol to go along with the crowd, because everyone else did.  There is no evidence of a specific injury. 

51.     In this case the hypothesised connection between Mr Harris’s alcohol consumption and his operational service is the habit he developed as a result of his service.  The Tribunal is satisfied that no such habit developed.  Mr Harris’s drinking commenced prior to his operational service, was controlled during his service and for a period of years after his discharge from the Army.  Mr Harris was diagnosed as not having an addiction.  From the evidence the Tribunal finds that, without the element of addiction, there is not a connection between his alcohol consumption and his operational service.  Mr Harris’s drinking is not related to his service as required by the SoP.  Accordingly, the hypothesis fails to fit within the template of the SoP and as a consequence the hypothesis is deemed not to be reasonable.  The claim for hypertension fails at this point. 

Other conditions

52.     The claims for atrial fibrillation, cardiomyopathy, peripheral neuropathy and gout all rely on the acceptance of war-causation of Mr Harris’s levels of alcohol consumption over periods of time.  The Tribunal has found that Mr Harris’s alcohol consumption was not war-caused.  As a consequence, the claims for each of these conditions also fail. 

CONCLUSION

53.     After considering all the evidence the Tribunal has found that Mr Harris does not suffer from the condition of alcohol abuse as defined pursuant to the Act.  The Tribunal has also found that Mr Harris’s alcohol consumption was not war-caused.  As a result, his hypertension was not war-caused which in turn means that his conditions of atrial fibrillation, cardiomyopathy, peripheral neuropathy and gout were not war-caused. 

54.     Mr Harris’s application is therefore unsuccessful.  It follows that the decision of the VRB must be affirmed.

DECISION

55.The decision under review is affirmed.

I certify that the fifty-five [55] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

Dr R. McRae, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of Hearing:  28 May 2009

Date of Decision:  25 August 2009
Counsel for the applicant                   Ms J Bornstein
Solicitor for the applicant                   Williams Winter Solicitors
Solicitor for the respondent:              Mr K Rudge, Department of Veterans’ Affairs