Rawson and Repatriation Commission

[2005] AATA 243

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 243

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/60

VETERANS'     APPEALS       DIVISION

Re:         ROBERT EDWARD RAWSON

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             23 March 2005

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that alcohol dependence or alcohol abuse suffered by the applicant was war-caused with effect from 3 December 2001, but pruritus ani and erectile dysfunction were not war-caused.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - alcohol dependence or alcohol abuse - inability to obtain appropriate clinical management - pruritus ani - impotence - whether war‑caused

Veterans' Entitlements Act 1986 ss 9, 120, 120A, 120(4)

Brew v Repatriation Commission (1999) 94 FCR 80

Fogarty v Repatriation Commission (2003) 37 AAR 363

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill (2002) 69 ALD 581

Repatriation Commission v Wedekind [2000] FCA 649

Repatriation Commission v Wellington (1999) 57 ALD 507

REASONS FOR DECISION

23 March 2005  G.D. Friedman, Member

1.      This is an application by Robert Edward Rawson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 2 October 2003.  The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 10 January 2002 that alcohol dependence or alcohol abuse, chronic anxiety disorder, irritable bowel syndrome, haemorrhoids, pruritus ani and erectile dysfunction (impotence) were not war‑caused.

2.      At the hearing the applicant was represented by Ms J. Bornstein of counsel on  5 November 2004 and 10 December 2004 and by Mr N. Green QC on 16 February 2005.  Mr G. Purcell of counsel represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), plus 3 exhibits (Exhibits A1‑A3) tendered by the applicant and 13 exhibits (Exhibits R1‑R13) tendered by the respondent.

BACKGROUND

4.      The applicant was born in Broken Hill, New South Wales, on 4 October 1942.  He left school after Year 7 and worked as a bricklayer’s labourer, then with the railways and in a soft drink factory, before joining the Australian Army (the army) on 16 January 1962.  He served until 6 May 1965 as a “sapper”, building bridges and  roads.  The applicant served in Northern Thailand from 7 January 1965 to 4 May 1965 and in Malaysia from 30 March 1965 to 5 May 1965. This constitutes operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act).

5.      Following his discharge the applicant began working in the building industry.  Later, he moved to New Zealand, where he lived for eight years and undertook a variety of labouring jobs.  In 1975 he moved to South Australia and worked in a factory before finding employment in road construction and maintenance.  In 1995 he moved to Victoria, where he now lives, with a former partner.

6.      The applicant suffered anxiety and depression after leaving the army, and was a heavy drinker and smoker.  He ceased smoking in the early 1980s, and took prescribed medication for anxiety and depression.  In 1995 he was granted disability pension.  On 2 November 2001 he made a claim to the respondent that Alcohol dependency and or abuse, Anxiety disorder, Hearing loss (Bi sensorineural), Irritable bowel syndrome, Haemorrhoids, Pruritus ani, Impotence and Tinea Pedis were war‑caused.

7.      On 10 January 2002 the respondent accepted liability for tinea and granted disability pension to the applicant at 10 per cent of the general rate with effect from 27 August 2001, but otherwise refused the claim.  On 3 June 2002 the applicant sought review of this decision by the VRB.  On 2 October 2003 the VRB affirmed the decision.  On 21 January 2004 the applicant lodged an application with the Tribunal for review of the VRB decision.

8.      At the hearing Ms Bornstein informed the Tribunal that the applicant was not pursuing the claim for anxiety, irritable bowel syndrome and haemorrhoids.  The only issue before the Tribunal was whether the applicant’s alcohol abuse or alcohol dependence, pruritus ani and erectile dysfunction were war-caused, and in particular whether the applicant had been unable to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

EVIDENCE

9.      In a written statement dated 12 February 2004 (Exhibit A1) the applicant said that he arrived in Malacca (Camp Terendak) on the Malay Peninsula on 17 November 1963.  He said that he was transferred to Ubon, in Northern Thailand, from 7 January 1964 to 4 May 1964.  He returned to Malacca for one year, and was then posted to Australia for his discharge.  He said that he was a light social drinker before joining the army, but began to drink more heavily when he served overseas.

10.     The applicant stated that his anxiety began in Malacca during a field exercise, when he heard a noise while standing guard.  He said that he became fearful that Indonesian insurgents were attacking, and fired his rifle (the rifle incident).  He stated that an investigation found no evidence of insurgents, and he felt foolish in front of his colleagues.  He said that his confidence was shaken by the rifle incident.  The applicant noted that when he was in Ubon he felt vulnerable; particularly when on guard duty.  He tried to cope with his growing anxiety by consuming alcohol to excess, sometimes up to 12 small cans of beer each day.  He said that his drinking led to a failure to adapt to army life, and he committed a number of offences, such as  being absent without leave.  He said that he still consumes about 12 cans of full‑strength beer each day.

11.     In respect of pruritus ani and erectile dysfunction, the applicant stated that he noticed these conditions in the 1970s, but did not seek treatment for pruritus ani until the 1980s or 1990s and erectile dysfunction until 1995.  He said that he continues to receive counselling from a psychologist on a regular basis.

12.     In oral evidence the applicant said that after basic training and a further 12 months’ training with the Royal Australian Engineers, he was posted to 1 Field Squadron.  He said that in Malacca he performed engineering work such as road and bridge construction and land clearing.  He said that there was a view that Indonesian insurgents were operating near the camp where he was stationed.  In relation to the rifle incident, the applicant explained that when he heard a noise and thought he saw movement he fired a single shot in the air.  He was later reprimanded by the commanding officer, which embarrassed him in front of the other soldiers and caused him to lose confidence.

13.     The applicant said that his feelings of anxiety grew while in Thailand, but he did not seek medical treatment or discuss his feelings with anyone.  He stated that beer was readily available and he coped with his anxiety by drinking heavily, which caused a number of breaches of army regulations, although at no time did army authorities offer counselling or treatment of his alcohol condition.  He said that his excessive alcohol consumption has remained a problem.

14.     In respect of the pruritus ani, the applicant stated that little water was available in Thailand, and sweating was a problem.  He said that his anxiety led to erectile dysfunction, but he was too embarrassed to seek medical assistance.

15.     Under cross-examination, the applicant said that he could not remember a number of offences which were found proven when he was in the army.  He said that not all the offences were alcohol-related, although he agreed that drinking made him feel better and enabled him to cope with the anxiety he developed during army service.  He said that he was certain that he was issued with live ammunition during the field exercise at the time of the rifle incident.  He said that he did not raise the rifle incident during the VRB hearing or when examined by Dr B. Kenny or Dr M. van der Linden (consultant psychiatrists) because he only answered the questions that were asked of him.

16.     In a written report dated 14 May 2004 (Exhibit A2), Dr M. Epstein, consultant psychiatrist, stated:

…

It appears that his alcohol consumption had increased prior to going to Thailand and that he had had two significant charges before he went there.

It does appear that his alcohol consumption increased in the context of operational service.

In a further written report dated 9 December 2004 (Exhibit A3) on the question of appropriate clinical management for alcohol abuse which would have been expected in or about 1964, Dr Epstein attached extracts from a number of textbooks which were published around that time.  Dr Epstein referred, in particular, to An Introduction to Clinical Psychiatry by Bryan Davies, The University of Melbourne, 1966.  Dr Epstein stated:

…In his chapter on alcoholism and drug dependence he [Davies] describes symptoms and signs of alcoholism, diagnosis, prevention and treatment.  He describes that treatment should consist of a period of alcohol withdrawal in a hospital or nursing home and that the withdrawal symptoms can be controlled with the use of medication including chlorpromazine (a drug which is still widely used) and thioridazine.  Adequate food, vitamins and full supportive care should be given at this time.  Disulfiram (Antabuse) was described as a useful drug in selected cases and led to unpleasant symptoms when people drank alcohol (this drug is still being used at times).  Alcoholics Anonymous was also recommended.  Treatment of physical complications was important and depressive symptoms, if persistent, also needed treatment.  He stated that the family and employment problem should be helped as much as possible.   

In general, his comments about the range of treatment to be provided are consistent with other texts at that time and have not altered markedly over the last forty years.

17.     In oral evidence Dr Epstein stated that in Thailand the applicant appeared to be chronically intoxicated, and needed “drying out” in hospital, followed by counselling and Antabuse, together with incentives to reduce his alcohol intake.  Dr Epstein concluded that the applicant was a young man who had been out of control, and that he did not receive appropriate clinical management for the condition.  Dr Epstein noted that the applicant was the subject of an increasing number of disciplinary charges in Malaysia and Thailand, but he said that the disciplinary process was not by itself part of clinical management.  He said that the current model for treatment of alcohol abuse (known as the bio-psychosocial model) is similar to the one that was used in the 1960s, and involves dealing with the physical manifestations such as detoxification and other symptoms that arise, the psychological factors contributing to that situation and the social upheaval that may well have followed as a result.

18.     Under cross-examination, Dr Epstein agreed that, in the 1960s and 1970s, there was heavy drinking in the army across all ranks.  He also agreed that at the time the applicant would have been told by his sergeant to reduce his alcohol intake before the matter would be referred to the unit commander.

19.     In a written report dated 19 July 2004 (Exhibit R2) Mr J. Church, Writeway Research Service Pty Ltd stated, in relation to access to hygiene facilities during operational service and field exercises, that most training units in Malaysia were located in primary jungle, and that washing was primitive.  Water was obtained from local ground sources and had to be treated and sterilised before use.  In relation to the availability of recreational facilities and access to alcohol in Malaysia and Thailand, Mr Church stated that alcohol was freely available in Terendak camp, and extremely good sporting and recreational facilities were provided.  Mr Church said that in Thailand limited supplies of beer were available through army canteens, but army personnel had ready access to beer stalls in the local village, outside the construction site.

20.     In oral evidence by telephone Mr Church stated that, at the time of the applicant’s service in Thailand, there was no risk from communist insurgents in the area.  Under cross-examination, he said that he was a Brigade Major at Camp Terendak, and he agreed that sometimes individuals breached army regulations.

21.     In a written report dated 28 June 2004 (Exhibit R4), Dr L. Walton, consultant psychiatrist, said that the applicant was suffering from a chronic anxiety disorder with depressive features and associated alcoholism.  He said:

…

In relation to Instrument No. 76 of 1988 concerning Alcohol Dependence or Alcohol Abuse, I am of the view that Mr. Rawson exhibits a maladaptive pattern of alcohol use which does lead to clinically significant impairment or distress.  This man’s level of continuing alcohol intake is indicative of tolerance.  He does not describe withdrawal symptoms.  The veteran reports that he does often consume larger amounts or for longer periods than intended.  There seem to have been no efforts to reduce his alcohol intake.    

In oral evidence Dr Walton told the Tribunal that some young people with alcohol problems have been willing to seek treatment.

22.     In a written report dated 22 December 2004 (Exhibit R12), in response to a request by the respondent for comments on Dr Epstein’s evidence concerning the adequacy of clinical management of the applicant’s alcohol abuse in Thailand, Dr Walton stated that the applicant was drinking up to 12 cans of beer daily during the 4 months he was in Thailand.  He disagreed with Dr Epstein’s description of the applicant as chronically intoxicated because he said that the applicant continued to perform his usual duties and drank when off duty.  He stated:

…Were the situation to have been one of continual alcohol consumption during waking hours, which may have extended for weeks or months, then it would be appropriate that hospital-based detoxification did occur.  If the situation was one of regular nocturnal consumption of alcohol to a point of intoxication, then hospital‑based detoxification would not be required.  Essentially Mr Rawson would detoxify spontaneously during the hours of sleep and during the daytime when he was not drinking.  

23.     Dr Walton stated that if the applicant’s alcohol consumption had been recognised by others as excessive, then:

…the appropriate clinical management at the time…would simply have been to provide him with stern advice to moderate his intake.  If the problems continued thereafter then referral to a psychiatrist or psychologist for individual counselling and/or participation in alcohol rehabilitation, such as offered by Alcoholics Anonymous, would have been appropriate.

24.     In relation to the applicant’s service records, Dr Walton acknowledged that the only mention of alcohol problems was in the discharge medical report, in which the applicant acknowledged that he had been overindulging recently.  Dr Walton said:

…I agree with Dr. Epstein that an astute physician would have explored that question further to distinguish, say, between a relatively innocent isolated example of drinking to excess, compared with what was the situation by then of a history of established excessive consumption, which proved to be ongoing.   

Dr Walton concluded that the applicant did not avail himself of appropriate clinical management, nor was it suggested to him that such intervention was necessary, but there was not an inability to obtain appropriate clinical management in the sense that such management was simply unavailable.

CONSIDERATION OF THE ISSUES

25. Section 9(1) of the Act provides:

9(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;

(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;

…

26. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

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 [Statement of Principles] 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.  

27.     In Statement of Principles (SoP) N° 76 of 1998 concerning alcohol dependence or alcohol abuse the relevant factor is:

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

Paragraph 6 of the SoP states:

Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

28.     Mr Green submitted that, on the material as a whole, there is a reasonable hypothesis connecting alcohol abuse suffered by the applicant with the circumstances of his service in Thailand between January 1965 and May 1965.  Mr Green noted the applicant’s evidence that he was a light social drinker before his overseas posting in November 1963, and that he started drinking more heavily after he was posted overseas; which was confirmed in the applicant’s discharge medical report.

29.     Mr Green referred to Dr Walton’s statement that an astute physician would have explored the question of the applicant’s admission that he had been overindulging recently.  He stated that Dr Epstein was suggesting that any competent doctor, whether astute or not, would have taken the matter further.  In relation to the literature provided by Dr Epstein in his report dated 9 December 2004, Mr Green said that these publications describe the models of management of alcohol available in the mid‑1960s.  He emphasised that Dr Epstein’s evidence should be accepted by the Tribunal because Dr Epstein trained as a physician and then as a psychiatrist in the 1960s and early 1970s, and had been heavily involved in the treatment of patients with alcohol dependence.

30.     In respect of Dr Walton’s evidence, Mr Green said that Dr Walton had described a reactive model which required the person affected by alcohol abuse to come forward to seek assistance, whereas in the 1960s a person presenting with signs of alcohol abuse should have been offered measures to assist.  He said that, at the time, the applicant was placed in an intolerable position of having to recognise his own problems and actively seek treatment, which though available was not presented to him by medical officers as an option.  Mr Green said that the Tribunal should give little weight to Dr Walton’s evidence on clinical management. 

31.     Mr Green submitted that the Tribunal should use the standard of clinical management prevailing at the relevant time rather than contemporary standards (Repatriation Commission v Wellington (1999) 57 ALD 507). He referred to the Full Federal Court judgment in Brew v Repatriation Commission (1999) 94 FCR 80 in which Heerey J (in a minority judgment) noted the beneficial nature of the Act and gave a wider meaning to inability (at 81):

…

However “inability” can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force…Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”.  How substantial is a question of fact, and not capable of definition a priori.

Merkel J also referred to the beneficial legislation and stated (at 87):

…In the present context that means that whether “inability” is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.  

32.     Mr Green stated that although the disciplinary charges against the applicant did not mention alcohol specifically, the nature of the charges and the applicant’s evidence about his drinking would lead to the inference that alcohol was involved.  Mr Green pointed out that the applicant was apprehensive about informing his superiors of his drinking problems because he did not want to make a fool of himself.  Mr Green said that there was material contribution by the applicant’s operational service.    

33.     Mr Purcell acknowledged that the medical evidence pointed to a diagnosis of alcohol dependence or alcohol abuse.  He submitted that the test for appropriate clinical management was set out in Repatriation Commission v Wedekind [2000] FCA 649, in which Kenny J stated:

[12] In summary, before the AAT could be reasonably satisfied that Mr Wedekind's pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind's particular service.  

34.     Mr Purcell stated that the date of clinical onset of alcohol dependence or alcohol abuse was between 7 January 1965 and 4 May 1965 in Thailand.  He noted the evidence from Dr Epstein concerning treatment of chronic alcoholics, and referred to the extract from Frank Fish and G.M. Carstairs, An Outline of Psychiatry for Students and Practitioners, Second Edition 1963 (Exhibit A3) which described four stages of alcohol addiction (at p101):

·   pre-alcoholic phase (drinking for the relief of symptoms);

·   prodromal phase (onset of blackouts);

·   crucial phase (loss of control and rationalising of drinking);

·   chronic phase (obsessive drinking and admission of alcoholism).

35.     In relation to the appropriate form of clinical management, Mr Purcell said that Dr Epstein and Dr Walton agreed that cessation of drinking and referral to counselling would have been appropriate for the applicant, if the authorities had been aware of the nature and extent of his drinking problems at the time.  On the question of whether the applicant was unable to obtain the appropriate form of clinical management, Mr Purcell noted the wide meaning of inability given by Heerey J in Brew, and said that in the matter under review the applicant had no apprehension of the likely consequences of admitting his drinking problems to senior officers.  Mr Purcell emphasised that there was no reference to alcohol in any of the disciplinary charges faced by the applicant.  He also said that there was no powerful persuasive force as mentioned by Heerey J.

36.     Mr Purcell referred to Brew (paragraph 22) and submitted that the dictionary definition of inability required an objective barrier to obtaining treatment, and not a lack of willingness to obtain treatment.  He said that the applicant had not sought treatment for his alcohol problem.  Mr Purcell stated that on the evidence the applicant was stationed at a well-equipped camp in Thailand, and a range of medical and other options was available to him.  He said that there was no evidence of aggravation of the applicant’s alcohol abuse, or material contribution to it, before or during service.

37.      In SoP N° 41 of 1996 concerning pruritus ani the relevant factor is:

5(b)suffering from episodes of diarrhoea, daily, over the seven days immediately before the time of the clinical onset of pruritus;

In its Statement of Facts and Contentions filed the applicant’s solicitors submitted that the applicant suffered from diarrhoea as a consequence of his war service, so that pruritus ani ought to be accepted as war-caused.  In its Statement of Facts and Contentions filed the respondent referred to the Medical Report - Onset of Pruritus Ani dated 6 December 2001 (T6, p5) by Dr P. Davey for the Department of Veterans’ Affairs, in which the date of clinical onset was described as Approx 10 years ago (around 1990 or 1991) and that the cause of the condition was Associated with haemorrhoid development. The respondent submitted that because of the date of clinical onset the condition cannot be connected with the applicant’s war service through the SoP.

37.     In SoP N° 97 of 1996 concerning impotence the relevant factors are:

5(a)suffering from a specified psychiatric condition at the time of the clinical onset of impotence;

(b)smoking at least five pack-years of cigarettes or the equivalent in other tobacco products within a twenty year period, before the clinical onset of impotence, and where smoking has ceased, the clinical onset has occurred within ten years of cessation;

Paragraph 2(b) provides:

(b)For the purposes of this Statement of Principles, “impotence” means persistent or recurrent failure to initiate an erection or maintain an adequate erection until ejaculation, and excludes transient failure of erection due to fatigue, anxiety, alcohol or drugs, attracting ICD code 302.72 or 607.84.

In its Statement of Facts and Contentions the applicant’s solicitors stated that the applicant suffered from erectile dysfunction from the early 1970s.  It was submitted that, if any psychiatric conditions were accepted as war‑caused, then the applicant would satisfy factor 5(a).  In the alternative, it was submitted that the applicant’s smoking habit was war-caused, so that the applicant satisfied factor 5(b).  In its Statement of Facts and Contentions the respondent submitted that no psychiatric condition was war-caused, so the applicant could not satisfy factor 5(a).  The respondent also referred to the Medical report - onset of erectile dysfunction dated 6 December 2001 (T6, page 62) by Dr P. Davey for the Department of Veterans’ Affairs, in which the date of clinical onset was described as Approx 1992 and that the cause of the condition was Depression.  The respondent submitted that because of the date of clinical onset the condition cannot be connected with the applicant’s war service through the SoP.

38.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

39.     The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities under s 120(4) of the Act. There was no dispute between the parties that the applicant suffered from alcohol dependence or alcohol abuse.

40.     The Tribunal has considered each of the four steps from Deledio.  In respect of the first step, the Tribunal finds, after taking into account all relevant matters that the material points to a hypothesis connecting the alcohol dependence or alcohol abuse with the circumstances of the particular service rendered by the applicant.

41.      In respect of the second step, the Tribunal finds that SoP N° 76 of 1998 concerning alcohol dependence or alcohol abuse was in force and is relevant.

42.     In respect of the third step, the Tribunal accepts the evidence from the applicant concerning his heavy drinking in Thailand during the relevant period, and his admission during his medical discharge procedure of recent overindulgence in alcohol.  The Tribunal accepts the evidence from Dr Epstein that during the mid‑1960s a range of models of management of alcohol treatment, as described in the literature cited by Dr Epstein, was available in relation to alcohol dependence or alcohol abuse, and that none of these was offered to the applicant despite his admission of recent overindulgence in alcohol.  On the available material the Tribunal also accepts the submission from Mr Green that the pattern of the applicant’s drinking in Thailand is consistent with the nature of the applicant’s disciplinary charges and that the offences were, at least in part, related to his drinking.

43.     The Tribunal takes into account that Dr Epstein trained as a medical practitioner and psychiatrist in the 1960s and early 1970s, and accepts that he has been involved in the treatment of alcohol-related conditions for many years.  The Tribunal prefers his evidence to the statement by Dr Walton that an astute physician would have explored the applicant’s admission of his drinking problems.  Dr Walton’s views on the meaning of inability to obtain clinical management do not accord with the approach outlined in Wedekind.  

44.     In applying the applicant’s circumstances to the test set out by Kenny J in Wedekind, the Tribunal finds that the approximate date upon which the applicant contracted alcohol dependence or alcohol abuse was between 7 January 1965 and 4 May 1965.  On the available material, the appropriate form of clinical management was drying out under medical supervision, followed by counselling, medication as required, and assistance by way of incentives to reduce alcohol intake.

45.     On the question of whether the applicant was unable to obtain that form of clinical management, the Tribunal takes into account the practical reality as described by Merkel J in Brew and the wide meaning of inability given by Heerey J.  The Tribunal accepts the submission by Mr Green that the applicant was physically capable of performing the acts involved in clinical management options, but in the context of military service at that time he was apprehensive of the likely consequences, including embarrassment at his condition and possibly further disciplinary charges.  In reality this had a substantial effect on his choice of inaction.  The Tribunal finds that the applicant was unable to obtain the appropriate form of clinical management.

46.     On the evidence presented to the Tribunal the inability related to the applicant’s service.  The alcohol dependence or alcohol abuse was contracted during his service, and was contributed to in a material degree by his particular service.  Therefore, the Tribunal finds that the applicant satisfies the test in Wedekind.

47.     In these circumstances there is material or evidence pointing to the applicant satisfying factor 5(e) of SoP No. 76 of 1998 concerning alcohol dependence or alcohol abuse, so the hypothesis raised is a reasonable one, and is consistent with the template in the SoP (Repatriation Commission v Hill (2002) 69 ALD 581).

48.     In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.  The Tribunal has considered all the material including the medical reports and service records.  There is no material before the Tribunal which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of alcohol dependence or alcohol abuse was war-caused.  Therefore, the Tribunal finds that the fourth step is satisfied, and the claim succeeds in respect of this condition.

49.     In respect of pruritus ani the Tribunal accepts the evidence from Dr Davey that clinical onset occurred in 1990 or 1991.  The Tribunal also notes that the applicant is not pursuing the claim in relation to irritable bowel syndrome and haemorrhoids, liability for which was denied by the respondent.  Taking this and other relevant matters into account, and applying Deledio, there is no material pointing to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.  Therefore, this aspect of the claim must fail.

50.     In respect of erectile dysfunction (impotence) the Tribunal accepts the evidence from Dr Davey that clinical onset occurred in about 1992.  The Tribunal notes that the definition excludes transient failure of erection due to alcohol or drugs.  The Tribunal also notes that no psychiatric condition has been accepted as war‑caused (factor 5(a) of the SoP).  However, the Tribunal is aware that the applicant gave evidence that he was a heavy smoker, and that he ceased smoking in the 1980s.  In the circumstances the applicant satisfies the first and second steps from Deledio.

51.     Applying the third step, the Tribunal has considered the evidence from Dr Davey that erectile dysfunction was caused by depression.  Taking all relevant matters into account, there is no material pointing to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.  Therefore, this aspect of the claim must fail.

DECISION

52.     The Tribunal sets aside the decision under review and substitutes a decision that alcohol dependence or alcohol abuse suffered by the applicant was war-caused with effect from 3 December 2001, but pruritus ani and erectile dysfunction were not war-caused.

I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:                  5 November 2004

10 December 2004

16 February 2005

Date of decision:                23 March 2005

Counsel for applicant:         Ms J. Bornstein    (5 November 2004 and 10 December 2004)

Mr N. Green QC  (16 February 2005)

Solicitor for applicant:         Williams Winter
Counsel for respondent:     Mr G. Purcell

Solicitor for respondent:      Advocacy Section, Department of Veterans’ Affairs