Robson and Repatriation Commission - [2001] AATA 133

DECISION AND REASONS FOR DECISION [2001] AATA 133

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1395

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mr Douglas Robson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date23 February 2001
PlaceSydney

Decision      The Tribunal decides to: 1. Affirm that part of the decision of the Repatriation Commission dated 26 September 1998, in relation to Chronic Solar Skin Damage, Sleep Apnoea and Hiatus Hernia; 2. Set Aside those parts of the decision under review in relation to Gastro-oesophageal Reflux Disease and Hypertension and in substitution therefor determines that the Applicant's conditions of Gastro-oesophageal Reflux Disease and Hypertension are war-caused pursuant to section 9 of the Veterans' Entitlement Act 1986. Disability Pension in respect of these conditions is payable with effect from and including 21 May 1998; 3.           The matter is remitted to the Repatriation Commission for assessment of the rate of Disability Pension payable to the Applicant.
  ...................[sngd]...................
  Ms SM Bullock, Senior Member
Catchwords
VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis - Gastro-oesophageal Reflux Disease - Hypertension - Sleep Apnoea - Chronic Solar Skin Damage - Hiatus Hernia

Legislation
Veterans' Entitlement Act 1986 ss 5D, 9, 13, 120(1), 120(3), 120A

Authorities
Repatriation Commission v Keeley [2000] FCA 532
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Ahrenfeld (1990) 101 ALR 71
McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Douglas Robson for review of a decision made by the Repatriation Commission ("the Commission") dated 26 September 1998 (T2) as affirmed by the Veterans' Review Board ("the Board") on 23 July 1999 (T15). The Commission refused to grant Disability Pension for the conditions of Gastro-oesophageal Reflux Disease, Chronic Solar Skin Damage, Hypertension and Sleep Apnoea.
A hearing was held before the Tribunal in Sydney on 6 November 2000. Mr Robson attended the hearing and provided oral evidence. Mr Robson was represented by Mr A Halstead of Counsel and the Respondent, the Repatriation Commission, was represented by Mr S Modder, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents, T1-T22") and the following exhibits:
Exhibit          Description Date
T1 –T22        T Documents Various
A1      Report of Dr FH Burns OAM, Consultant Physician, Specialist in Drug and Alcohol Dependency May 2000
A2      Statement of Mr D Robson concerning smoking history         22 August 2000
A3      Proceedings of HMAS CULGOA. 1953
R1      Report by Professor RP Mattick, Associate Professor, National Drug and Alcohol Research Centre of the University of New South Wales     28 July 2000

Issues

The issues to be determined in this matter are whether or not the conditions of Gastro-oesophageal Reflux Disease, Hiatus Hernia, Sleep Apnoea, Hypertension and Chronic Solar Skin Damage are war-caused.
At hearing, Mr Halstead, representing the Applicant, advised that there was no further evidence being provided in relation to the conditions of Chronic Solar Skin Damage and Hiatus Hernia and the issue of whether or not those conditions were war-caused should be determined by the Tribunal on the papers.
At the outset, the parties advised that there was no issue as to the diagnosis of the claimed conditions.
Service
Mr Robson served in the Royal Australian Navy from 2 May 1951 to 2 July 1957 (T3, p8). His eligible war-service, which is also operational service in HMAS CULGOA, was from 14 March 1953 to 27 November 1953 in Korea (T3, p9).
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), particularly sections 5D, 9, 13, 120(1), 120(3) and 120A.
Section 5D deals with the definitions of disease and injury and as relevant states:
"5D Injury/disease definitions
(1)       In this Act, unless the contrary intention appears:
blinded in an eye has the meaning given by subsection (3).
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)       a temporary departure from:
(i)        the normal physiological state; or
(ii)       the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)       a disease; or
  (b)       the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2)       In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note:    for war-caused injury and war-caused disease see section 9.
Blinded in an eye
…"

Section 9 of the Act deals with war-caused injuries or diseases and as relevant states:
"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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…"

Section 13 of the Act deals with eligibility for Disability Pension and as relevant states:
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(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:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
The standard of proof required for operational service is that of the reasonable hypothesis and is dealt with in subsections 120(1) and 120(3) of the Act which state:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A.
…"

Section 120A of the Act deals with Statement of Principles and as relevant states:
"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.
Note 1:   Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:   For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
Note:    See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be.
…"

Statement of Principles

As Mr Robson's claim was lodged after 1 June 1994, section 120A of the Act applies. Therefore, the Tribunal is required to assess the reasonableness of hypotheses for any condition with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
The Tribunal is also bound by the decision of the Federal Court in Keeley v Repatriation Commission [2000] FCA 532 in which the Court decided that the Statement of Principles to be applied is that which is in operation at the time of the primary decision, which in this case is the Commission's decision of 26 September 1998. Accordingly, the relevant Statement of Principles are:

Instrument Number 39 of 1997 concerning Sleep Apnoea
Instrument Number 33 of 1996 concerning Chronic Solar Skin Damage
Instrument Number 64 of 1998 concerning Hypertension
Instrument Number 121 of 1995 concerning Gastro-oesophageal Reflux Disease
Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse of Dependence

In respect of the condition Hiatus Hernia, there were no Statements of Principles in existence for this condition at the time of the Repatriation Commission's decision. In such circumstances, the proper approach when applying subsections 120(1) and (3) of the Act was set down by the Federal Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
Background
The following information is provided by way of background and the facts contained within are not in dispute.

Mr Robson was born on 3 July 1933.
Mr Robson attended Marist Brothers College in Westmead and obtained his Intermediate Certificate.
Prior to joining the Royal Australian Navy, Mr Robson was an apprentice electrician for approximately 15 months.
Mr Robson joined the Royal Australian Navy on 2 May 1951, aged 17 years.
During his time in the Navy, Mr Robson undertook training in radio and radar mechanics.
While in the Navy Mr Robson served in the following locations:
2 May 1951 to 1 November 1951, (Recruit Electrical Branch) HMAS CERBERUS.
2 December 1951 to 14 December 1952, (Radio Electrical Mechanic) HMAS CERBERUS.
15 December 1952 to 1 June 1953, (Radio Electrical Mechanic) HMAS CULGOA.
2 June 1953 to 1 February 1954, (Radio Electrical Mechanic) HMAS CULGOA.
2 February 1954 to 23 August 1954, (Radio Electrical Mechanic) HMAS AUSTRALIA.
24 August 1954 to 5 December 1955, (Radio Electrical Mechanic) HMAS HARMAN.
6 December 1955 to 14 December 1956, (Radio Electrical Mechanic) HMAS TARANGAU.
15 December 1956 to 27 January 1957, (Radio Electrical Mechanic) HMAS PENGUIN.
28 January 1957 to 14 March 1957, (Radio Electrical Mechanic) HMAS MELBOURNE.
15 March 1957 to 2 July 1957, (Radio Electrical Mechanic) HMAS PENGUIN.
2 July 1957 discharged, engagement expired (T3, p8).
Following discharge from the Navy, Mr Robson undertook various courses such as Bar Service and Wine Appreciation Courses, Electric Welding and a Counselling Course at Bankstown Adult Education Centre.
Mr Robson's employment after the Navy included work as a Foreman/Technician at Stromberg Carlson; as a Barman/Steward with the Bardweld Park RSL and at RSL clubs including Kingsgrove and Bexley North; and Production Manager for electronic instruments at Elliott Automation. From approximately 1964 to 1970, Mr Robson held short term positions with various television companies such as O'Donnell-Griffin and HG Palmers; driving earth-moving equipment; Warden at Long Bay Goal; Ambulance Officer with the NSW Ambulance Service; First Aid Officer with Toohey's Brewing Company; Telecom Technician; and lastly, Administrative Officer in Telecom until February 1992, when Mr Robson was made redundant.
Mr Robson made an initial claim for Disability Pension for the condition of Gastro-oesophageal Reflux Disease and on 20 April 1994, the Repatriation Commission refused his claim for this condition (T8).
On 21 August 1998, Mr Robson claimed Disability Pension for the conditions of "Gastro-oesophageal Reflux Disease", "Hiatus Hernia", "Skin Cancers", "Sleep Apnoea" and "Hypertension" (T9). Mr Robson linked his Gastro-oesophageal Reflux Disease to a "service-caused addiction to cigarettes"; Hiatus Hernia was also claimed to be caused by an addiction to cigarettes and Skin Cancers were claimed to be due to "solar rays" during service. Sleep Apnoea was noted on the claim to have been confirmed in 1994 by a sleep study and Mr Robson claimed the condition was caused by obesity which had arisen out of his other claimed condition of Gastro-oesophageal Reflux Disease. Hypertension was diagnosed in 1985, as reported by Mr Robson's General Practitioner, Dr J du Toit and Mr Robson claimed that this condition arose out of obesity caused by Gastro-oesophageal Reflux Disease (T9, pp30, 31, 33).
On 26 September 1998, the Repatriation Commission refused to grant a Disability Pension for the conditions of Chronic Solar Skin Damage, Gastro-oesophageal Reflux Disease with Hiatus Hernia, Sleep Apnoea and Hypertension. The Commission noted inconsistencies in Mr Robson's smoking history concluding that initially Mr Robson had detailed the commencement of smoking at least three ounces of tobacco per week in 1951 when he joined the Navy, increasing to 20 to 30 cigarettes per day while in Korea. Smoking was further increased to 60 cigarettes per day in 1975 until ceasing in 1984 / 1985. The increase in smoking as initially detailed by Mr Robson was noted by the Commission to be due to "cheap cigarettes, dealing with stress and whilst drinking". A later contention by Mr Robson and noted by the Commission was that he began smoking 20 cigarettes per day in 1951, two years prior to operational service and that in 1957 the cigarette consumption was varied and increased to greater than 60 cigarettes per day, finally ceasing smoking in 1982 (T2, p3).
On 26 October 1998, Mr Robson lodged an application for review to the Board, which decided on 23 July 1999, that the decision of the Commission should be affirmed in relation to all the claimed conditions (T15). Mr Robson did not attend the Board's hearing and he was not represented at that hearing. As had been previously noted by the Commission, the Board also noted that Mr Robson had completed a Smoking Questionnaire on 10 March 1994, stating that he had commenced smoking in 1951, smoking 20 cigarettes per day until 1957, when smoking increased to in excess of 60 cigarettes per day up until 1982, when Mr Robson ceased smoking (T6). A subsequent Smoking Questionnaire signed by Mr Robson but noted by the Board to be completed in different handwriting and dated 21 August 1998, indicated that Mr Robson had commenced smoking in 1951 at the rate of three ounces per week but had increased in Korea to about 20 to 30 cigarettes per day increasing to 60 cigarettes per day in 1975 (T10). In the later Smoking Questionnaire Mr Robson noted that he had ceased smoking in 1984/1985. The Board determined that it was not able to reconcile the different accounts of Mr Robson's smoking history.
On 14 September 1999, Mr Robson made an application for review to the Tribunal stating that the decision of the Board was wrong (T1).
The condition of Gastro-oesophageal Reflux Disease was diagnosed in a report of 21 January 1994 by Dr SP Mistilis, Specialist in Gastrointestinal and Liver Diseases (T5), noting that there had been dyspepsia in 1957 and a small ulcer in the duodenal cap diagnosed in 1959 following a barium study.
Hiatus Hernia was also diagnosed by Dr Mistilis following gastroscopy.
In relation to Chronic Solar Skin Damage, there was no precise date of onset but Dr du Toit, General Practitioner, noted the presence of the condition on 19 August 1998 (T9, p31).
Sleep Apnoea was noted to be present following a sleep study undertaken in 1994.

Hypertension was reported by Dr du Toit as having its onset in 1985 (T9, p33).

Evidence of Mr Robson

Mr Robson told the Tribunal that he joined the Royal Australian Navy just before his eighteenth birthday in 1951 and he had not smoked before joining the Navy.
Mr Robson described himself at school as being a bright boy and in the Navy he helped all the "old retreads" to write letters and undertook general administrative work for them. Mr Robson told the Tribunal that he looked up to these men and followed their lead in some aspects of life in the Navy including smoking and the consumption of alcohol. On commencement of his service, Mr Robson served in HMAS FLINDERS and was issued with 30 pence, soap, a razor and tobacco products.
Initially, Mr Robson's period in the Navy involved some training as a Radio/Radar Mechanic and he was then posted from HMAS FLINDERS to HMAS ARUNTA. In a written statement of 22 August 2000, Mr Robson wrote that one morning in January 1953, when he was 19 years old, he was unexpectedly taken off HMAS ARUNTA and posted to HMAS CULGOA. HMAS CULGOA was undergoing work-ups in order to engage in operations for the Korean War. During March 1953, HMAS CULGOA sailed for Korea to engage in operations against the enemy.
Mr Robson described a number of incidents during his service in HMAS CULGOA. A few days before becoming engaged with the enemy, Mr Robson described a situation where on 14 April 1953, in Sasebo Harbour, Japan, the ship was birthed alongside HMS ATHABASKAN when an explosion occurred in the calorifier room which caused two crew to be injured. Mr Robson described that one crew member had his genitals severed as result of the explosion. In his statement, Mr Robson described that it was at about this time:
"…it struck me that we were about to become involved in serious warfare operations and the sense of adventure I had previously felt disappeared – I became very frightened about everything going on around me." (Exhibit A2)

Mr Robson noted that HMAS CULGOA was never fired upon during the period he was in Korean waters but nonetheless, he stated that he was young and extremely frightened by being in the combat zone. Mr Robson stated that he had received little training and did not really know what to expect. He was one of the youngest crew on board. There were bombardments every few days and action stations were exercised. This is evident by reference to the proceedings of HMAS CULGOA (Exhibit A3). During action stations, Mr Robson described being locked up for periods of time when there was bombardment on shore. The ship was often blacked-out and there was a constant reminder of the action because of the bombardment of the shore.
Mr Robson described a further incident which occurred in late June 1953, when the HMAS CULGOA was involved in evacuation operations when United Nations and South Korean personnel had been seriously injured and some personnel were "chopped up beyond recognition" (Exhibit A2). The proceedings of HMAS CULGOA indicate that the CULGOA was called on two occasions to help with evacuation, on the first evacuation trip, it was found that 30 men had been killed and a further 39 killed before a second evacuation trip. Mr Robson described the horror of seeing the wounded and the dead being brought on board and although he was not directly involved, he was asked to be messenger boy and was running between the personnel as these injured were brought on board. Mr Robson described still remembering this scene vividly to this day.
Further stressful events occurred when HMAS CULGOA encountered a number of cyclones in the South China Sea causing mountainous seas, which were "absolutely terrifying".
In cross-examination, Mr Robson agreed that his post-service civilian work as an ambulance officer was stressful, particularly in relation to the treatment of injured children. He told the Tribunal, however, the most stressful experience of his life was the event which involved the evacuation on United Nations and South Korean personnel who had been injured or indeed killed as a result of the warfare in Korea during 1953. Mr Robson stated that he believed these experiences were more stressful because he was young, naive, untrained and had not expected such traumatic experiences. While working as an ambulance officer, however, he had received training and knew what to expect during the course of his duties. Thus, Mr Robson stated to the Tribunal, his latter experiences were significantly different.
Mr Robson also stated that when he joined the Navy, he had not commenced smoking tobacco. Mr Robson noted in his smoking history written on 22 August 2000 (Exhibit A2), that the Navy provided him with tobacco rations and that each fortnight, on a payday, he received the ration card for tobacco and cigarettes or a combination of both. The rations were substantial enough to enable Mr Robson to regularly send his excess tobacco and cigarettes home, given that he was only regularly smoking five or six cigarettes per day during his posting to HMAS FLINDERS. When serving in HMAS ARUNTA, Mr Robson estimated that he continued smoking at the same rate of about five or six cigarettes per day.
When posted to HMAS CULGOA, Mr Robson's cigarette consumption remained at the same rate until about March 1953, when HMAS CULGOA sailed for Korea to engage in active operations. Following the incident with the explosion in the calorifier room, Mr Robson stated that he increased his smoking to the point where he rarely had a cigarette out of his hand. When at action stations, again, Mr Robson described himself as rarely having a cigarette out of his hands and explained that he smoked to settle his nerves. He was issued at that stage with about "50 Woodbine cigarettes" but would always try to obtain the American cigarettes "Lucky Strikes". He thought that there were 20 cigarettes per packet and he described that he would smoke excessively during action stations, which could be anything from two to three hours up to eight hours.
Mr Robson stated that he found it difficult to estimate his smoking levels and always provided answers to questions on this issue in terms of "ball park figures". Mr Robson stated that there was no doubt that he definitely smoked considerably more tobacco on operational service than he had previously.
In relation to a Smoking Questionnaire completed on 10 March 1994 (T6), Mr Robson noted that he had commenced smoking in 1951 because it was the thing to do and he wanted to emulate the "tough old salts". Mr Robson noted in the Questionnaire that -in 1951, that he was hooked on the habit of 20 cigarettes per day and then increased to in excess of 60 cigarettes per day from 1957 to 1982. Mr Robson agreed that a later Smoking Questionnaire of 21 August 1998, had slightly different figures noting that he smoked three ounces of tobacco per week when he first joined the Navy in 1951 because of peer pressure, cheap rations and being one of the boys and then when in Korea in 1953, he increased his consumption from 20 or 30 cigarettes per day up to 60 cigarettes per day from 1975 to 1985, ceasing in approximately 1984/1985 (T10). Mr Robson reiterated that he found it difficult to recall exact levels of smoking, however, he considered that the most recent statement of 22 August 2000 (Exhibit A2), was the most accurate. That statement indicates that Mr Robson smoked very little from 1951 when entering the Navy but increased his cigarette consumption dramatically on operational service in Korea as a result of stress, wanting to emulate his peers and because of availability.
After service in Korea, Mr Robson stated that he continued to smoke 20 to 30 cigarettes per day but this eventually increased to 60 cigarettes per day because he just could not stop. He had tried to give up smoking on a number of occasions, ceasing for only short periods of time. He particularly remembered trying to give up smoking in about 1964 but again this attempt only lasted several weeks. Mrs Robson had also tried to give up smoking and had done so for a short period of time but then returned to smoking, which then caused Mr Robson himself to recommence smoking.
Sometime between 1980 and 1982, Mr Robson finally ceased smoking. He was tired of coughing up "black stuff" and went from smoking 60 cigarettes per day to none at all. After giving up smoking, Mr Robson stated that his weight increased. Mr Robson concluded in relation to his smoking history that he has no doubt whatsoever that his addictive heavy smoking habit developed as a result of his operational service in Korea and the fact that the Royal Australian Navy provided him and others with tobacco.
In relation to his alcohol consumption, Mr Robson's early life prior to the Navy involved almost total abstention from the consumption of alcohol. Prior to joining the Navy and while serving his apprenticeship, Mr Robson was living in a Catholic Saint Vincent's Hostel where he had to take a "pledge" not to consume alcohol. He was also, when posted first to HMAS FLINDERS in Melbourne, under the age for the legal consumption of alcohol. Mr Robson had very little money at that time with which to purchase alcohol.
When he did eventually begin to drink in the Navy, Mr Robson noted that he did like the taste of alcohol and in Korea, on operational service, he was receiving more pay and therefore could afford to increase his alcohol consumption. Describing the event of having to help in the evacuation of "chopped up Yanks" he stated was extremely upsetting and he turned to alcohol as he did with cigarettes, to try and ease his stress.
Further, Mr Robson agreed that his ability to drink alcohol varied according to his situation. While on operations he was not able to drink but when on shore, following the operations, he would consume enormous quantities of alcohol. Mr Robson stated that he very quickly became "a seasoned drinker" on operational service. Mr Robson believed he spent a greater proportion of his operational service on shore but believed that he went to sea approximately 30 or 40 times.
Mr Robson acknowledged, however, that there were many holes in his memory about his consumption and agreed that he told many doctors he had consumed different levels of alcohol. Mr Robson noted that it was very difficult to admit to anyone, let alone a medical practitioner or himself, that he had a drinking problem and that he was addicted.
In 1954, after Korea and once back in HMAS AUSTRALIA, Mr Robson was drinking beer in addition to rum and cloves. Mr Robson told the Tribunal that he got into trouble on his next posting to HMAS HARMAN, when he tried to break into a naval bar to obtain more alcohol. As a result of this and his excessive drinking, he was sent to HMAS TARANGAU. Although this transfer was by way of punishment, Mr Robson stated that it turned out to be a positive move because he was forced to abstain from alcohol and in fact took on considerable workloads for which he earned additional money. This was important as he was trying to obtain money for his family. There was thus a period of relative abstinence from alcohol, which lasted for approximately eight to twelve months.
In 1958, Mr Robson married and then returned from HMAS TARANGAU where his level of alcohol consumption had reduced to virtually nil, to consuming alcohol in greatly increased amounts. When first discharged from the Navy and in civilian life between 1957-1958, Mr Robson thought that he may have slightly decreased his consumption of alcohol, however, this did not last long. He in fact worked concurrently in a number of jobs so that he was still able to maintain and indeed eventually increase his alcohol consumption, whilst not diminishing the financial returns with which to maintain his wife and family.
In May 1959, Mr Robson was investigated for severe pain in the "upper epigastrium" which had been occurring over a five-week period. A stomach ulcer was diagnosed. Mr Robson was asked about his alcohol consumption and in the doctor's report it was noted that he very rarely drank alcohol (T3, p13). Mr Robson told the Tribunal that this was not an accurate representation of his consumption of alcohol at that time and he believed that he was in fact working part-time at a hotel where he had quite easy access to alcohol. Mr Robson told the Tribunal that he did not want to reveal to the doctor that he was addicted to alcohol, which he believed he was. This tendency to minimise or deny his alcohol consumption also applied to the doctor's representation of Mr Robson's smoking 20 cigarettes per day in 1963 (T3, p16), Mr Robson stated.
During his employment, Mr Robson was not counselled or disciplined for his alcohol consumption. He was, however, charged with driving under the influence of alcohol and had been "spoken to" at Telecom but that was more about his attitude rather than his actual alcohol consumption. Mr Robson was in fact able to move into the administration at Telecom and take up a quite senior and responsible position. Mr Robson explained to the Tribunal that he was able to control his drinking habit so that he never placed himself in danger, for example when working with electrical equipment or serving behind the bar.
Mr Robson agreed under cross-examination that his drinking was sometimes social but he stated this was not always the case. Mr Robson described his drinking alcohol as a habit which had arisen out of the stress he had experienced in the Navy and which then caused him to turn to alcohol and cigarettes to ease his nerves.
In the last ten to twelve years, Mr Robson described his alcohol consumption as heavy although approximately three to four years ago he tried to decrease his alcohol consumption to what he calls "mid-range drinking", not in terms of the quantity consumed but in terms of alcoholic content.
Currently, Mr Robson consumes eight to twelve schooners of beer every Thursday evening and every Sunday morning. On other days at home, he consumes six to eight "mid range" cans of beer. Reflecting, Mr Robson considered his highest level of alcohol consumption occurred in the first two years after Korea while serving in HMAS AUSTRALIA and in HMAS HARMAN. His drinking increased because of his addiction, he believed. The specific factors which Mr Robson believes caused him to turn to alcohol, related to the fact that he was very afraid in Korea and although hard to admit, he just could not take the pressures involved although he had tried very hard to show that he was not afraid.
Mr Robson was referred to a report dated May 2000, by Dr M Burns, Consultant Physician and Specialist in Drug and Alcohol Dependency (Exhibit A1), in which Dr Burns noted:
"…I do not exclude that Mr Robson has chosen to drink because of social benefits eg, relaxing with friends, and for other reasons. Nevertheless his learned experience from his Navy days and the continued association with service life and clubs, and his companions after discharge, have been a significant contributor to the determination of the natural history of his drinking. This is the basis for my reasonable hypothesis associating Mr Robson's time in the Navy and his present drinking style and its consequences." (Exhibit A1).

Mr Robson agreed that he preferred to drink with someone such as a digger or a Vietnam Veteran because of their shared experiences and understanding. He reiterated, however, that there were no words to describe how he felt in Korea in the war. He could describe symptoms but not his feelings. All he could say to the Tribunal was how badly it felt being locked up at action stations, how afraid he was when he saw the injured and dead being brought on board HMAS CULGOA and the pressure and fear of trying not to break down or panic.

Mr Robson denied that his alcohol consumption was the cause of any conflict or estrangement with his wife. While Mr Robson acknowledged that Mrs Robson did not like his drinking and there were discussions about it, it was not the main reason for their marital difficulties.
In relation to Solar Skin Damage, Mr Robson stated that he did not consider this occurred as a result of his operational service in Korea.
In relation to the condition of Hiatus Hernia, Mr Robson believed that this was part of his Gastro-oesophageal Reflux Disease condition.
In relation to Hypertension, Mr Robson stated that this is controlled on the medication Avapro. Mr Robson also takes medication for his Gastro-oesophageal Reflux Disease, occasionally taking Zantac or Mylanta.
For the condition of Sleep Apnoea, diagnosed in 1994, Mr Robson does not use a CRAP machine but controls the condition with the medications Rhinocort and Atrovent.
In terms of Mr Robson's fitness levels, he told the Tribunal that in the Navy he was very fit playing sports such as tennis, rugby and martial arts. After the Navy, Mr Robson was involved in karate and other martial arts and swimming but ceased in about the 1970's. Mr Robson stated that he had a weight problem after he ceased smoking cigarettes and also this occurred when he was working at the brewery. Dr Burns reported in May 2000, that Mr Robson regularly goes to the gymnasium and uses the swimming pool. Dr Burns noted that Mr Robson started to gain weight after he ceased smoking in 1984 and also because of bursitis in his left shoulder, which occurred in the mid 1980's, this again contributed to Mr Robson's weight gain.
Medical Evidence
Dr FH Burns, Consultant Emeritus to the Drug and Alcohol Department, Royal Prince Alfred Hospital, Visiting Physician, Dependence Unit, Northside Clinic, Consultant Emeritus to the Drug and Alcohol Services, Concord Hospital.
Following an examination of Mr Robson on 19 April 2000, Dr Burns reported in May 2000, that:
"Mr Robson has a history of hazardous drinking since his service in Korea in 1953 progressing to harmful drinking in the late 1950s. It is now established as a regular pattern of harmful drinking, with some aspects of the alcohol dependence syndrome, though minimal physical dependence…. Mr Robson demonstrates tolerance, but not withdrawal, continued excessive consumption, unsuccessful attempts to cut down or controlled alcohol use, much time spent in activities related to drinking and social occupations related to drinking, and the alcohol use has continued despite a feeling of regret about the consequences of drinking.
…Although Mr Robson said they never drank at sea, while on operational service in Korea there was the constant concern about explosion and disaster, and the risk of not surviving the war. They tended to seek release in heavy drinking when ashore.
…Mr Robson would have satisfied the criteria for harmful drinking between 1957 and 1970, even though he drank less. The emergence of dependence was evident after 1970, but it would not be unexpected if Mr Robson had reported drinking more than 50 standard drinks a week on occasions when he was in the Navy. He continued his drinking even while he had young children, though he drank much less, and drank away from home. In those days he had the part-time job at the RSL which fulfilled this need.
…The environment in the Navy was a significant contributing factor to the establishment of Mr Robson's drinking habit, and the subsequent development of dependence and the accumulation of alcohol-related disabilities has occurred as part of a natural history of harmful drinking. Massive exogenous obesity, insulin-dependent diabetes mellitus, gastric hypersecretion and reflux oesophagitus, and hypertension are the documented alcohol-related physical disabilities.
…In the 1970's before the diagnosis of hypertension Mr Robson was drinking full strength schooners, each drink approximately two standard drinks, 5 to 7 schooners on most days would be a rough approximation. This would mean between 600 and 800 grams of alcohol a week. This is greatly in excess of the threshold for the development of both harm and dependence. ..." (Exhibit A1)

Associate Professor, R Mattick, Director of Research, National Drug and Alcohol Research Centre, Faculty of Medicine, University of New South Wales.

In relation to Mr Robson's smoking history, Associate Professor Mattick reported on 28 July 2000, that Mr Robson was smoking approximately 17 cigarettes per day before operational service and that on his reading of the documents and understanding Mr Robson's information to him, he smoked in a similar fashion after operational service. Associate Professor Mattick stated that he could find no evidence that Mr Robson's smoking after operational service was increased because of that service. The increase in smoking did not in fact occur, Associate Professor Mattick opined, until many years after operational service. Associate Professor Mattick opined that Mr Robson was dependent on tobacco before and after operational service and could find no causal connection between smoking and operational service (Exhibit R1).
In relation to Mr Robson's alcohol consumption, Associate Professor Mattick opined that Mr Robson does meet the criteria for alcohol dependence under the criteria set out in DSM – 1V. Associate Professor Mattick, however, had difficulty relating Mr Robson's alcohol consumption to his eligible service noting that he could find no evidence of any particular stressful event, which could have caused Mr Robson's level of alcohol consumption. While accepting that being on a ship in a war zone would cause considerable concern, from Associate Professor Mattick's perspective, he thought that a more significant and obvious stressful event would be required. Associate Professor Mattick opined that in Mr Robson's case this was a situation where Mr Robson had:
"…gradually developed a pattern of heavy drinking because he enjoyed it. I do not believe his drinking has been driven by his war-time experiences.
Again, the issue here goes to that of what makes up a reasonable hypothesis. This ultimately is a legal issue, but from my perspective I cannot find sufficient evidence which would suggest that Mr Robson's alcohol dependence was caused by being on the HMAS Culgoa in 1953." (Exhibit R1)

Other Evidence
Ultra-Violet – Risk, Service Risk Summary

A UV Risk Summary undertaken on 17 September 1998 from data provided in a "Solar Skin Damage Assessment" by Mr Robson (T11), indicated that Mr Robson's increased risk from Ultra Violet radiation caused by operational service was less than 10 per cent (T12, p54).
Submissions
Mr Halstead submitted that on operational service in Korea, Mr Robson experienced at least three stressful events. The first event occurred when there was an explosion in the calorifier room resulting in two crew members being injured, one seriously. This is confirmed by the proceedings of HMAS CULGOA for 14 April 1953 (Exhibit A3). The next event occurred with the shore bombardments, which were constant and Mr Robson being called to action stations, as also recorded in the ship's proceedings. The third event and the one considered by Mr Robson to be by far the worst experience of his life, occurred with the evacuation rescue of United Nations and other personnel who were wounded or deceased. Although Mr Robson was not directly involved with the evacuation, he saw the dead and injured being brought on board the ship and was involved in undertaking various message duties in relation to this evacuation. Again, this incident is recorded during the proceedings for June 1953 (Exhibit A3).
Mr Halstead submitted that these events caused Mr Robson's life-long dependence on alcohol. While Mr Halstead noted Associate Professor Mattick's opinion that Mr Robson had not experienced stressful events, Mr Halstead respectfully submitted that the Associate Professor had not been there, whereas Mr Robson had been in Korea and had experienced these events first hand. Further, these events were recorded in the ship's official records. Referring to Dr Burns's opinion that these events were stressful, Mr Halstead contended that Dr Burns's opinion should be preferred because he is a qualified medical officer while Associate Professor Mattick is a Psychologist.
In the existing circumstances, namely that Mr Robson experienced stressful events during service and most particularly that occurring in June 1953, Mr Halstead submitted that Mr Robson met factor 1(a) of the Statement of Principles being Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence. Factor 1(a) states:
"(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;…
"Stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."

Mr Halstead further submitted that Mr Robson met the diagnostic criteria for alcohol dependence as defined in the Statement of Principles because of his continuing drinking despite knowledge of having psychological or physical problems exacerbated by the use of the substance. This submission was supported by Dr Burns's opinion that Mr Robson was drinking harmfully since 1953 with the onset of dependence occurring in the 1970's.
Mr Halstead further submitted, as opined by Dr Burns, that by the 1970's, Mr Robson was drinking between 600 and 800 grams of alcohol per week before the determination of Hypertension. This amount was grossly in excess of the threshold for the development of alcohol abuse or dependence.
Accordingly, Mr Halstead submitted that there was a reasonable hypothesis raised linking the stressful events in the Navy to Mr Robson's dependence on alcohol. There were no facts to disprove this hypothesis and accordingly Mr Halstead contended that Mr Robson had a service-related alcohol dependence problem.
Turning to the condition of Hypertension, Mr Halstead noted that the relevant factor is factor 5(b) of Instrument Number 64 of 1998. Factor 5(b) states:
"(b) suffering from alcohol dependence or alcohol abuse involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks), at the time of the accurate determination of hypertension;…
"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour;…"

Mr Halstead submitted that the accurate determination of Hypertension was made in 1985, as noted by Dr du Toit (T9, p33). While there may have been readings earlier of Hypertension, the accurate determination was not until 1985. Dr Burns opined that in the 1970's, prior to the determination of Hypertension, Mr Robson was consuming grossly in excess of 200 grams of alcohol per week as required by the Statement of Principles. There is no evidence to indicate that by 1985 this level of consumption of alcohol decreased below 200 grams of alcohol per week. Accordingly, Mr Halstead submitted that a reasonable hypothesis is raised linking Mr Robson's alcohol dependence to his Hypertension and therefore this condition is war-caused.
In relation to the condition of Gastro-oesophageal Reflux Disease, this seems to have been accurately diagnosed and the onset taken as 1994, as noted by Dr SP Mistilis, Specialist in Gastro-intestinal and Liver Diseases (T5). While there were reports earlier of epigastric pain, the more likely onset following accurate determination of the condition should be taken as 1994, Mr Halstead submitted.
The relevant factor in Instrument Number 121 of 1995 concerning Gastro-oesophageal Reflux Disease is factor 1(k) which states:
"(k)exhibiting psychoactive substance abuse or dependence involving alcohol before, and involving the consumption of alcohol continuing at least until, the clinical onset of gastro-oesophageal reflux disease;…"

"Psychoactive substance abuse or dependence" is defined by reference to the criteria contained within DSM – IV.

Mr Halstead submitted that the level of alcohol consumption and the maladaptive pattern of its use satisfied the criteria for alcohol dependence and certainly in 1994 and continuing to this day, Mr Robson is maintaining this dependence. Therefore, in these circumstances, Mr Halstead submitted that a reasonable hypothesis was raised linking Mr Robson's service-related alcohol dependence problem with the condition of Gastro-oesophageal Reflux Disease. There were no facts to disprove this reasonable hypothesis beyond reasonable doubt, Mr Halstead submitted.
In relation to Sleep Apnoea, Mr Halstead submitted that the relevant factor in Instrument Number 39 of 1997 concerning Sleep Apnoea is factor 5(b) which states:
"(b) being obese at the time of the clinical onset of Sleep Apnoea;…
Being Obese means an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Commission Medical Authority's Statement about the causes of "being obese" signed by the Chairman of the Authority on 16 August 1996, attracting ICD code 278.0;…
"being obese" is considered to be present when the BMI [Body Mass Index] is 30 or greater…."

Mr Halstead referred the Tribunal to Dr Burns' notation that Mr Robson weighed 126 kilograms in 1997; that in the last 18 months he had reduced his weight to 100 kilograms although now he currently weighs 110 kilograms. Dr Burns further noted that Mr Robson put on weight after he ceased smoking in 1984 and also following Mr Robson suffering from bursitis of the shoulder in the 1980's. Dr Burns opines that alcohol dependence has led to the associated problem of massive exogenous obesity. At the time of reporting, Dr Burns noted Mr Robson's BMI as 35 (Exhibit A1, p3)
Accordingly, Mr Halstead submitted that a reasonable hypothesis was raised linking a service-related obesity through alcohol dependence, to Mr Robson's condition of Sleep Apnoea.
Although Mr Halstead noted that Mr Robson was at times inconsistent with dates and quantities, particularly of alcohol and cigarette consumption, he submitted that this did not indicate a lack of credit on Mr Robson's part. Mr Halstead referred the Tribunal to Repatriation Commission v Ahrenfeld (1990) 101 ALR 71 in which Einfeld J concluded that the policy of legislation and public interest demanded that every reasonable available inference should be drawn in favour of the veteran. Mr Halstead urged the Tribunal to adopt Justice Einfeld's approach in relation to its consideration of Mr Robson's matter.
Mr Halstead made no further submissions in relation to the conditions of Chronic Solar Skin Damage nor Hiatus Hernia. In conclusion, Mr Halstead contended that the conditions of Gastro-oesophageal Reflux Disease, Hypertension and Sleep Apnoea were war-caused and accordingly the decision of the Repatriation Commission of 26 September 1998, should be set aside and in substitution the Tribunal should decide that the conditions were war-caused and that Disability Pension should be paid from and including 21 May 1998. Mr Halstead further submitted that the assessment of the correct rate of Disability Pension should be remitted to the Commission for determination.
Mr Modder for the Commission conceded that there was no issue as to Mr Robson's credibility. The issues were rather that there were gaps and inconsistencies in relation to dates and quantities of alcohol and cigarette consumption, which the Tribunal would have to take account of in its determination.
In relation to the condition of Gastro-oesophageal Reflux Disease, Mr Modder submitted that the diagnosis in 1994 by Dr Mistilis, should be taken as the date of onset.
In relation to Mr Robson's smoking habit, Mr Modder submitted that Mr Robson had agreed in the evidence that he commenced smoking in 1951, before operational service and smoked various amounts thereafter, ceasing smoking in 1984. Mr Modder submitted that Mr Robson's smoking history did not indicate a service-related smoking habit and even if it did, the fact that he ceased smoking in 1984, ten years before the diagnosis of Gastro-oesophageal Reflux Disease in 1994, did not allow Mr Robson to satisfy factor 1(j) of Instrument Number 121 of 1995 concerning Gastro-oesophageal Reflux Disease, which requires smoking cigarettes or tobacco products as an addiction before and until the clinical onset of Gastro-oesophageal Reflux Disease.
Before turning to consider the other conditions, Mr Modder submitted that in relation to Psychoactive Substance Abuse or Dependence, that he did not consider the stressful events described by Mr Robson as satisfying the definitional criteria within the relevant Statement of Principles for Psychoactive Substance Abuse or Dependence. In so submitting, Mr Modder was not suggesting that the incidents experienced by Mr Robson were not of concern or distressing, but submitted that they did not reach the level of a stressful event as defined. Associate Professor Mattick's opinion supported Mr Modder's contention.
Further, Mr Modder submitted that the histories provided by Mr Robson did not suggest the diagnostic criteria for alcohol dependence or abuse, as defined, were met. In this regard, Mr Modder noted that Mr Robson described being able to handle his drinking and that he was able to abstain from alcohol consumption when it might either be socially or physically hazardous or impacting upon his ability to perform his various occupational pursuits. Further, in Korea, Mr Robson was not drinking when welding or working with electricity. He was able to discipline himself as to when he did and did not consume alcohol. There was also no evidence of absenteeism from work post-Navy and Mr Robson had denied that alcohol had caused any estrangement or deterioration in the relationship with his wife. Mr Modder contended that in fact Mr Robson's consumption of alcohol was related to a social habit. Reference to Mr Robson undergoing medical examinations post-service indicate that either Mr Robson in May 1959, "rarely drank" (T3, p13) or on 16 January 1963, was a "very moderate" drinker and was also only smoking 20 cigarettes per day (T3, p16).
Mr Modder submitted that rather than Mr Robson having a service-related alcohol dependence problem, he drank because he enjoyed it and there were social/leisure components attached to his drinking. Thus, while the Navy may have introduced Mr Robson to drinking and smoking, it was Mr Robson's choice to continue. He drank and smoked for enjoyment rather than to relieve stress.
Both Associate Professor Mattick and Dr Burns have found that in relation to Mr Robson's drinking habits, there is a social aspect.
The Respondent relies on Associate Professor Mattick's opinion that alcohol and smoking were not related to service. Dr Burns also commented at page five of his report, that he could not exclude that Mr Robson has chosen to drink because of the social benefits, while noting however, that Mr Robson's learned experience from his Navy days and continued association with service companions after discharge had been significant contributors to the determination of the history of his drinking habits. Further, Mr Modder noted that Mr Robson had told Associate Professor Mattick that his work as an Ambulance Officer was stressful and that he had increased his alcohol consumption accordingly. This is understandable considering Mr Robson's state of distress at dealing with injured people, particularly young children. It is Mr Modder's contention, however, that the stresses reported by Mr Robson years after operational service, were in fact thought of later and that there were more recent non-service stresses which could have impacted upon Mr Robson's smoking and alcohol consumption.
As a logical reult of Mr Modder's contention that there was no alcohol dependence problem, he next submitted that the relevant factors in the Statement of Principles for Gastro-oesophageal Reflux Disease and Hypertension were not raised and therefore these conditions could not be related to service. In relation to Sleep Apnoea, there was no causal relationship between service and the condition, Mr Modder submitted, contending that obesity was not related to Mr Robson's service. In all these circumstances, Mr Modder submitted that the decision of the Repatriation Commission dated 26 September 1998 should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law.
The Tribunal finds Mr Robson to have been cooperative and straightforward in the provision of his evidence. While noting that there were gaps in the history and particularly in relation to dates and levels of consumption of either alcohol or tobacco products and in relation to information provided to various doctors over the years, the Tribunal considers that Mr Robson was not deliberately trying to mislead the authorities or decision makers. The Tribunal considers that Mr Robson genuinely is unable to remember dates and levels of consumption and this is related to the various conditions he has. Further, the Tribunal considers that the levels of alcohol consumption, which Mr Robson related to various doctors, was an attempt by Mr Robson to deny his alcohol dependence, which on all the evidence and on recent medical and psychological opinion, he indeed suffers from. Noting Mr Robson's circumstances, the intent of the legislation, particularly in relation to section 119 of the Act and Repatriation Commission v Ahrenfeld (supra), the Tribunal does not doubt Mr Robson's credibility. Further, the Tribunal notes that there is no issue between the parties as to Mr Robson's credibility.
Chronic Solar Skin Damage
Mr Robson told the Tribunal that he did not believe that the Chronic Solar Skin Damage, which he has, is related to operational service. Further, a Risk Summary undertaken from information provided by Mr Robson, reveals that his ultra violet risk exposure was below 10. The relevant Statement of Principles for Chronic Solar Skin Damage is Instrument Number 33 of 1996, which has only three factors. The only relevant factor on the evidence would be factor 5(b) requiring a solar ultra violet damage factor ratio of at least 1.1. Mr Robson does not meet this factor and hence no reasonable hypothesis can be raised. In such circumstances the Tribunal decides that on all the material before it none of the minimum factors set out in the Statement of Principles is raised by the evidence. Accordingly, the material does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act and the Tribunal is satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act that there is not sufficient ground for determining that the condition of Chronic Solar Skin Damage was war-caused. Having so found, the Tribunal must affirm the decision under review in relation to Chronic Solar Skin Damage.
Hiatus Hernia
By gastroscopy undertaken in 1994, a Hiatus Hernia with free reflux was revealed (T5, p21). Mr Robson contended in his claim that the Hiatus Hernia developed as a result of his addiction to cigarettes. There was no Statement of Principles concerning Hiatus Hernia in force at the time of the Commission's primary decision of 26 September 1998. A Statement of Principles, being Instrument Number 42 of 1999 concerning Hiatus Hernia came into force on 24 June 1999, and had only one factor which related to the inability to obtain appropriate clinical management for Hiatus Hernia. When no Statement of Principles is in force, the correct approach, as outlined earlier in this decision, is that contained within the decisions of Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra).

Next, the Tribunal turned to consider Mr Robson's smoking history. There is wide discrepancy as to the level of smoking at various times. Mr Robson has stated that he commenced smoking in 1951 but in very small quantities, The Tribunal notes that while Mr Robson has submitted a smoking history (Exhibit A2), which indicates a very low level of consumption up until operational service in Korea where consumption increased dramatically as a result of the stressful events, a previous Smoking Questionnaire completed on 10 March 1994, indicated that the level of consumption was 20 cigarettes per day from 1951 to 1957, then reaching a high level of in excess of 60 cigarettes a day from 1957 to 1982. The Tribunal considers that this earlier Smoking Questionnaire completed in Mr Robson's own hand is more likely to be the more accurate. The Tribunal is of a view, based on all the evidence including Mr Robson's own evidence and that provided by various medical practitioners, that prior to operational service, Mr Robson had a well-entrenched smoking habit. The level of consumption increased in the Tribunal's interpretation of the evidence, after operational service and other factors caused this, such as the stressful service in the Ambulance. Thus, the Tribunal does not consider that in relation to his smoking habit, Mr Robson has a service-related smoking habit.
On all of the evidence, the Tribunal does not consider that a reasonable hypothesis has been raised linking the Hiatus Hernia with cigarette consumption as required under subsection 120(3) of the Act. Therefore, the Tribunal is not satisfied beyond reasonable doubt for the purpose of subsection 120(1) of the Act that there is any sufficient ground for determining that Mr Robson's condition of Hiatus Hernia is war-caused. Accordingly, the Tribunal affirms the decision under review as it relates to Hiatus Hernia.
Alcohol Dependence
Before determining the issue of the remaining conditions of Sleep Apnoea, Hypertension and Gastro-oesophageal Reflux Disease, the Tribunal finds it convenient to discuss the issue of whether or not Mr Robson has a service-related alcohol dependence problem.
In doing so, the Tribunal notes the principles laid down in McKenna v Repatriation Commission (1999) 86 FCR 144 that each sub-hypothesis linking the condition to service must meet any relevant Statement of Principles. Noting the opinions of Dr Burns and Associate Professor Mattick, both experts agree that Mr Robson does suffer from alcohol dependence although Associate Professor Mattick is of the view that taking the definitional / diagnostic criteria for alcohol dependence from the relevant Statement of Principles being Instrument Number 5 of 1994, Mr Robson may not meet the definitional requirements. The Tribunal has considered the diagnostic criteria contained within paragraph four of the relevant Statement of Principles. Based on the evidence, which includes Dr Burns's opinion, the Tribunal considers that Mr Robson has continued to use alcohol despite knowledge of having psychological and physical problems associated with its use. He was concerned that that he was addicted to alcohol and noted that he tried to deny this and keep this fact from medical practitioners over the years.
The Tribunal, being satisfied that Mr Robson meets the diagnostic criteria for alcohol dependence, turned to the Statement of Principles to see whether or not a reasonable hypothesis could be raised by connecting one of the factors with the condition. Of relevance is factor 1(a), which deals with experiencing a stressful event. The Tribunal accepts that Mr Robson was exposed to a number of stressful events during his service in HMAS CULGOA in Korea. Of the three events mentioned, all of which in and of themselves could be considered by the Tribunal to be stressful, the one which most completely meets the definitional requirements, is that of the evacuation of the United Nations personnel and other troops who were injured and deceased. The Tribunal considers that it is extremely important to consider that in the context of Mr Robson being very young, at sea, in a combat zone where it is clear that the HMAS CULGOA was involved in combat activities and resulting injuries and death, that Mr Robson was not only distressed but extremely frightened and fearful for his safety. In the context of action stations and noting the proceedings of HMAS CULGOA, Mr Robson's fears were real. The specific event of the evacuation of injured and deceased United Nations personnel and other troops very clearly brought into focus for Mr Robson the danger of war. The fact that the HMAS CULGOA was not bombarded itself, does not detract from the Tribunal's view that Mr Robson's experience of operational service was in fact stressful as defined. In such circumstances, the Tribunal considers that as factor 1(a) has been met, a reasonable hypothesis has been raised.
Turning to consideration of subsection 120(1) of the Act to ascertain whether or not there are any facts to disprove the raised reasonable hypothesis, the Tribunal notes that Mr Robson consumed alcohol to a very low level prior to operational service in HMAS CULGOA. Prior to Naval service his family context was one of almost complete abstinence from alcohol and in the context of staying at the Saint Vincent's Hostel and the YMCA during his apprenticeship and early training years, he again was required not to consume alcohol. Further, when initially enlisted, Mr Robson was below the legal age for consumption of alcohol. He also was not in receipt of a great deal of money. Accordingly, the Tribunal finds that Mr Robson increased his alcohol consumption as a result of his operational service and there is nothing in the evidence which refutes this. Further, the Tribunal finds that based on the evidence and Dr Burns's opinion, the likely onset of the alcohol dependence occurred by the 1970's although there was probably psychoactive substance abuse prior to the expiration of operational service, which then later developed into dependence post-service.
Accordingly, the Tribunal finds that it is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act that there is not sufficient grounds for determining that Mr Robson's alcohol dependence was war-caused.
Sleep Apnoea
From Dr du Toit's report contained within Mr Robson's claim for this condition, the onset of Sleep Apnoea was confirmed by a sleep study in 1994. The Applicant has contended that this condition is related to obesity. Certainly in the Statement of Principles concerning Sleep Apnoea, Instrument Number 39 of 1997, there is a factor 5(b) concerning obesity.
It is noted from Dr Burns's report that following the cessation of smoking in 1982, Mr Robson increased his weight. He was 126 kilograms in 1997 and had progressively lost weight from then until now, weighing 106.8 kilograms with a BMI of 35.
In his Smoking Questionnaire of 10 March 1994, Mr Robson reported that having ceased smoking in 1982, he had increased weight. Further, the Tribunal notes Dr Burns's report that weight had also been increased because of bursitis in his left shoulder in the 1980's, leading to Mr Robson having to undertake administrative work in Telecom, which further contributed to weight gain. The Tribunal notes Dr Burns' opinion that Mr Robson is now alcohol dependant and as a consequence this has led to the accumulation of alcohol-related disabilities including massive exogenous obesity (Exhibit A1, p4).
The Tribunal considers that in order for factor 5(b) to be raised, the obesity must be linked to Mr Robson's service. The Tribunal finds that there are a number of factors contributing to Mr Robson being obese at the time of the clinical onset of Sleep Apnoea in 1994. These factors relate to Mr Robson's cessation of smoking, his bursitis in his left shoulder and his alcohol dependence. The Tribunal has already found that Mr Robson's cigarette consumption is not related to his service. Further, the left shoulder bursitis is, on the evidence available to the Tribunal, not related to service. The Tribunal also is unable to determine on the available evidence whether or not Mr Robson was obese in 1994, as defined in the Statement of Principles. The Tribunal is therefore of the view that given that obesity is related to a number of factors including significantly non-service-related factors, then factor 5(b) is not met and accordingly no reasonable hypothesis can be raised linking a service-related obesity condition to the condition of Sleep Apnoea.
The Tribunal considered the remaining factors but found that none of the minimum factors set out in the Statement of Principles concerning Sleep Apnoea is raised by the evidence. The Tribunal therefore finds that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act and therefore the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is not sufficient grounds for determining that Mr Robson's condition of Sleep Apnoea is war-caused. In such circumstances, the Tribunal must affirm the decision under review as it relates to this condition.
Gastro-oesophageal Reflux Disease
Gastro-oesophageal Reflux Disease was first diagnosed in 1994 and although there may have been symptoms of the condition prior to this, the Tribunal takes the date of onset as 1994.
The Tribunal accepted that there is a general hypothesis linking Mr Robson's service-related alcohol dependence with Gastro-oesophageal Reflux Disease and turned to the relevant Statement of Principles, Instrument Number 121 of 1995, to ascertain if a reasonable hypothesis could be raised pursuant to subsection 120(3) of the Act. The relevant factor, factor 1(k), requires that there be a psychoactive substance abuse or dependence involving alcohol before and continuing at least until the clinical onset of Gastro-oesophageal Reflux Disease. The Tribunal finds that on all the evidence, Mr Robson did have an alcohol dependence problem as a result of his service, continuing up until and beyond the clinical onset of Gastro-oesophageal Reflux Disease in 1994. Having so determined, the Tribunal turned to consider whether or not under subsection 120(1) of the Act there were any facts to disprove this raised hypothesis. The Tribunal considers that there is nothing contrary to proved scientific facts or anything obviously fanciful or not tenable or too remote in the matters raised.
The facts in support of this hypothesis are that Mr Robson has a service-related alcohol dependence problem, he was continuing at this level of alcohol dependence at the time of the onset of Gastro-oesophageal Reflux Disease and in fact continues at a level of dependence to this day. Dr Burns is of the view that Mr Robson should in fact undergo counselling and treatment in relation to alcohol withdrawal. Further, Associate Professor Mattick also is of the view that Mr Robson has an alcohol dependence problem. Accordingly, the Tribunal found in applying subsection 120(1) of the Act, that it could not be convinced beyond reasonable doubt that Mr Robson's condition of Gastro-oesophageal Reflux Disease was not war-caused. Therefore, Mr Robson's application for review must succeed with the Tribunal making a finding that this condition is war-caused pursuant to section 9 of the Act.
Hypertension
The Tribunal considers that the accurate determination of Hypertension was made in 1985, as noted by Mr Robson's General Practitioner, Dr du Toit (T9, p33). The Tribunal turned to consider subsection 120(3) of the Act to see whether or not a reasonable hypothesis could be raised linking Hypertension to Mr Robson's service. The relevant Statement of Principles, Instrument Number 64 of 1998, pursuant to factor 5(b), requires that a claimant be suffering alcohol dependence or abuse involving the consumption of an average of at least 200 grams per week of alcohol at the time of the accurate determination of Hypertension, which in this case is 1985. The Tribunal has already determined that Mr Robson has a service-related alcohol dependence problem. Further, the Tribunal notes the expert opinion of Dr Burns that based on Mr Robson's evidence and documentary history, in the 1970's and continuing, Mr Robson had an alcohol consumption of an average in excess of 200 grams per week of alcohol, and more accurately to a level of 600 to 800 grams of alcohol per week. Accordingly, the Tribunal considers that factor 5(b) of the relevant Statement of Principles is met and accordingly a reasonable hypothesis has been raised. There is nothing fanciful or remote in this hypothesis and it is not beyond the realms of possibility.
In such circumstances, the Tribunal turned to consider subsection 120(1) of the Act to determine whether or not there were sufficient facts to support this raised reasonable hypothesis. There has been much discussion in this matter as to the gaps in Mr Robson's memory in terms of dates and levels of alcohol consumption. The Tribunal has determined that such gaps or inconsistencies in the evidence are not indicative of Mr Robson lacking credibility. Given this finding, and the findings of dependence expert, Dr Burns, the Tribunal is satisfied beyond reasonable doubt that there are no facts to disprove Mr Robson having an alcohol dependence problem at the time of the determination of Hypertension in 1985, which involved him drinking in excess of 200 grams of alcohol per week. Accordingly, the Tribunal finds that pursuant to subsection 120(1) of the Act, it is not satisfied beyond reasonable doubt that there is not sufficient ground for determining that Mr Robson's condition of Hypertension is war-caused pursuant to section 9 of the Act. In such circumstances, the Commission's decision of 26 September 1998, in relation to Hypertension, is set aside.
In summary, the Tribunal determines that the decision under review in relation to Chronic Solar Skin Damage, Hiatus Hernia and Sleep Apnoea be affirmed. In relation to the conditions of Hypertension and Gastro-oesophageal Reflux Disease, the decision under review is set aside and in substitution therefor, the Tribunal decides that these conditions are war-caused pursuant to section 9 of the Act.
The Tribunal further decides that in relation to Disability Pension, it is payable from and including 21 May 1998, a date not more than three months prior to the initiating claim and the earliest date the Tribunal is able to set under the Act.
The Tribunal further decides that in relation to the assessment of the appropriate rate of Disability Pension, this matter should be remitted to the Repatriation Commission for determination.
I certify that the 101 preceding paragraphs are a true copy of 5the reasons for the decision herein of Ms SM Bullock
Signed:         ............[sngd]..................................................................
  Sharonne Brainenberg, Associate
Date of Hearing  6 November 2000
Date of Decision  23 February 2001
Counsel for the Applicant              Mr A Halstead
Solicitor for the Applicant              Ms E Sadler, Legal Aid Commission
Advocate for the Respondent       Mr S Modder, Department of Veterans' Affairs