Slattery and Repatriation Commission - [2002] AATA 730

DECISION AND REASONS FOR DECISION [2002] AATA 730

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1343
  Nº V2001/75
GENERAL ADMINISTRATIVE DIVISION
  Re:         BRYAN THOMAS SLATTERY
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             26 August 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision of the respondent (as affirmed by the Veterans' Review Board on 11 September 2000) in respect of lumbar spondylosis and substitutes the decision that lumbar spondylosis is war-caused, with effect from 23 July 2000.
In all other respects the Tribunal affirms the decisions under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – eligible service – alcohol abuse or dependence – hypertension – ischaemic heart disease – cerebrovascular accident – lumbar and cervical spondylosis – whether Statements of Principles satisfied – whether war-caused
Veterans' Entitlements Act 1986
Re Holthouse and Repatriation Commission (1982) 1 RPD 287
Repatriation Commission v Gorton (2001) 110 FCR 321
Wedderspoon v Minister for Pensions [1947] 1 KB 562
Minister for Pensions v Chennell [1946] 2 All ER 719

REASONS FOR DECISION

26 August 2002 M.J. Carstairs, Member

This is an application by Bryan Thomas Slattery (the applicant) for review of two decisions by the Veterans' Review Board (the VRB) dated 11 September 2000. The VRB affirmed the decisions of the Repatriation Commission (the respondent) refusing claims for cerebral ischaemia, cervical spondylosis, alcohol dependence or abuse, ischaemic heart disease, cervical and lumbar spondylosis, osteorarthrosis and non-melanotic malignant neoplasm of the skin.
At the hearing Mr D.F. Hyde of Counsel, instructed by De Marchi & Associates, solicitors, represented the applicant. Mr G. Purcell of Counsel, instructed by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (the AAT Act). The Tribunal also had before it exhibits marked A1-A7 for the applicant and R1-R4 for the respondent.
BACKGROUND
The applicant was born on 8 October 1914 and is now aged eighty-seven. When he enlisted in the Australian Army (the army) he was aged twenty-six. He served within Australia between 3 May 1941 and 10 January 1946. His service, being service within Australia, is eligible service under the Veterans' Entitlements Act1986 (the Act). He was posted to a motor transport unit and then to supply units, rising to the rank of Warrant Officer Class 2 in July 1943. The applicant's army record shows that, at 21 June 1945, he was transferred to 12 Supply Depot Company, which had a Forward Supply Depot in Katherine in the Northern Territory. He served in Katherine until January 1946.
After the war, the applicant was employed as a tennis coach. He married in 1961, having coached his wife at tennis from when she was aged ten.
On 28 June 1999, the applicant made a claim on the respondent for hip pain, skin cancer and back pain. These conditions were diagnosed as localised osteoarthrosis affecting both hips, non-melanotic neoplasm of the skin of various sites and lumbar spondylosis. On 22 November 1999 the applicant lodged a further claim for hypertension and heart problems. On 11 January 2000 a claim was lodged for cerebrovascular accident, cervical spondylosis, and alcohol abuse/dependence. The respondent identified the claimed conditions as ischaemic heart disease; cerebrovascular accident; hypertension; cervical spondylosis; and alcohol dependence or alcohol abuse. All the conditions claimed by the applicant as being war-caused were rejected by the respondent and the VRB.
The applicant then sought review by the Tribunal on 13 November 2000 (in regard to the claims for ischaemic heart disease; cerebrovascular accident; cervical spondylosis; and alcohol dependence or alcohol abuse). Subsequently he sought review by this Tribunal on 23 January 2001 in respect of the other conditions denied by the VRB on 11 September 2000 (that is, the claims for localised osteoarthrosis affecting both hips, non-melanotic neoplasm of the skin of various sites, and lumbar spondylosis). An extension of time was granted for the making of that application. At the time of the hearing the applicant had withdrawn the claims for non-melanotic malignant neoplasm of the skin and osteoarthrosis of the hips.
EVIDENCE
The applicant gave evidence by telephone from St Joseph's Nursing Home in Kew, where he now resides. The applicant did not recall a written statement dated 28 February 2001 (exhibit A2). His wife, Genevieve Slattery, later gave evidence that she had signed it on his behalf. The written statement set out that the applicant did not drink alcohol prior to service and that he had taken a pledge not to drink until the age of twenty-five. He confirmed this in his oral evidence. The written statement described an incident in which the applicant was driving a staff car, when it overturned into an offal pit located at the supply depot in Katherine. The statement recorded that the applicant was severely traumatised by being trapped upside down in the vehicle overnight. The written statement said that he commenced drinking quite heavily after this incident.
In oral evidence the applicant said he was trapped upside down in the staff car and the car had ended up on its side. Those who came to the scene were unable to do anything that night, and left the applicant in the vehicle until it could be towed out the following day. He said that he had no memory of events immediately after the accident. He did not have any recollection of how he was cleaned up after it and did not recall any part of the trip back to Melbourne for his discharge, which occurred very soon after. He said that, during the night, when he was trapped, he thought that he might drown. He thought that he might have been knocked unconscious in the incident.
Under cross-examination, he said that, on the night of the incident, he had been invited for a farewell drink by one of the butchers he worked with in supply, to mark his return to Melbourne for discharge. He said he did not have many drinks that night and the incident occurred when he was driving home. He said a new offal pit had been dug for the rubbish and off-cuts from the butchery area. He drove into the pit because he was not aware that its location had been changed. In the written statement he recorded that he had a sore back and neck for about ten days to two weeks and was unable to function normally for at least two weeks after the accident.
The written statement set out that he drank approximately 3 bottles of gin with two others after the incident and that I was unable to do anything at all for three days afterwards.
In oral evidence the applicant said that he was drinking a bit before the incident, but drank more after it as he thought that it would ease the pain. He said he was drinking beer and spirits. He confirmed, under cross-examination, that he had told Dr Cole, psychiatrist, that as he had access to the sergeants' mess, he would have eight to ten glasses of beer each night. He said that he was able to get access as he was in charge of ordering supplies. After the war, he said he continued to drink – but not during the day as he was coaching children at tennis. He would have between three and five glasses at the club on the way home and he would drink at home. While he gave evidence that he drank every day, he said that he had not been charged with any drink-driving offence, although the police had pulled him over on one occasion. The written statement stated that he was charged with a drink-driving offence.
The applicant said that, after the war, his back prevented him from playing tennis. He could no longer play tennis competitively although he would give coaching demonstrations. He said that he had worn a lumbar brace about the time of his marriage in 1961. In a later written statement, dated 24 July 2002, the applicant said that his job with the supply unit had involved "… heavy lifting & loading & unloading of trucks, trains and boats … basically all day, every day for the duration of my army career".
In this later written statement he went on to say:
… I lifted crates of food & other items & on occasion, had to lift & change heavy tyres on motor vehicles. The latter part of my time was spent in the Northern Territory, where I drove over corrugated, rough & unmade roads, which caused further damage to my back.
Mrs Slattery gave oral evidence that she had met the applicant as her tennis coach, when she was ten years old and her family got to know him well. She said that from the time she first knew him the applicant had a bad back. Mrs Slattery said that her husband had been reluctant to marry her because of his back problems. Under cross-examination, she said that the applicant had been to masseurs and physiotherapists over the years, but nothing helped with his back problems. She said that the story of the staff car going into the offal pit was part of their family folklore.
Mrs Slattery said that, while her husband was not an unpleasant drunk and did not drink while he was working, there were times when she asked him not to drive after drinking and she talked with him about why he drank so much. Mrs Slattery gave evidence that she had signed the applicant's earlier statement (exhibit A2) on his behalf. In her oral evidence she corrected the statement insofar as it recorded that the applicant had consumed three bottles of gin after the staff car accident. She recalled that her husband had told her that this bout of drinking had taken place before the staff car accident.
In a written report dated 5 September 2001, (exhibit A5) Mr H. Hadley, orthopaedic surgeon, stated that the applicant had advanced lumbar and cervical spondylosis, which was of a greater degree than would be expected for a man of his age. Mr Hadley estimated that the applicant had lost about half the normal range of movement in the cervical spine, and about three–quarter loss in the thoracolumbar spine. Mr Hadley stated that the conditions were related to the motor vehicle accident as such an accident can lead to spondylosis, and the disc injury sustained could lead to degeneration of the spine.
In oral evidence Mr Hadley said that the applicant was able to recall that the staff car went down into the pit at a drop of 7 to 8 feet and that he was not wearing a seat belt. He said the applicant described pain and stiffness in his neck and back that lasted for the ten days following. Mr Hadley said that in his opinion the motor vehicle accident was a trauma that gave rise to spondylosis. He said that the stiffness recalled by the applicant was a sign of altered movement. Mr Hadley understood from the applicant that he was not required to do normal duties after the incident.
Under cross-examination, Mr Hadley said that the applicant had indicated that the pain he suffered after the motor vehicle accident had been in both the thoracic and the lumbar area. His experience of dealing with veterans was that they did not report pain or injuries at the time of their discharge. Mr Hadley said that the likely course of events was that the applicant injured the discs in the motor vehicle incident, the discs slowly underwent degeneration and he sought treatment only after the pain became unbearable.
In a written report dated 7 May 2001 (exhibit A3) Dr E. Cole, consultant psychiatrist, stated that the applicant had a poor memory but had attempted, to the best of his ability, to recall dates and times at his interview. He said that the applicant was unable to give an adequate history. He said that it would appear that the applicant began to drink heavily in the army but it would be difficult to meet the requirements of a diagnosis of alcohol abuse or dependence. Dr Cole further stated that there was little evidence that the applicant suffered a well-defined nervous disorder as a result of his service. In a later report dated 16 January 2002 (exhibit A4), he revised his opinion, stating that he now realised that alcohol abuse, under the Statement of Principles (SoP) for alcohol dependence or alcohol abuse (Instrument Nº 77 of 1998), requires only that one of four requirements be met.
In oral evidence, Dr Cole said that, under the wide definition of alcohol abuse in the SoP, the applicant, having driven the car while influenced by alcohol, met the definition. Under cross-examination, he acknowledged that the applicant had not clearly demonstrated clinically significant impairment or distress, as set out in the definition of alcohol abuse in the SoP. He acknowledged that, in his revised report (exhibit A4), he had not turned his mind to the question of the 12-month period specified in the definition in the SoP. He agreed under cross-examination, that there was nothing at the time of, or within 12 months after, the applicant's service that suggested that the applicant had alcohol abuse disorder.
In a written report dated 13 July 2001 (exhibit R2), Dr L. Walton, consultant psychiatrist, stated that the aftermath of the stroke suffered by the applicant made it difficult to get a history from him. Dr Walton's understanding was that the applicant was a non-drinker prior to service, a modest consumer at first on service, but when exposed to the sergeants' mess, his alcohol intake became excessive. He said, however, that this was consistent with the social mores of the day. Dr Walton said that following service, the applicant exhibited a modest reduction in alcohol consumption. Overall, however, Dr Walton said that the applicant had a lengthy history of excessive alcohol intake of potentially injurious proportions, and had a history of driving while intoxicated, as reported by his wife and by himself at the examination. Dr Walton did not consider that there was a clinical worsening of alcohol abuse.
In oral evidence, Dr Walton said that the applicant had memory loss at the time of the incident. He said that a trauma of the kind suffered in a motor vehicle accident could lead to increased alcohol consumption. He considered that the applicant had a maladaptive pattern of alcohol use and that he demonstrated clinically significant impairment or distress, as he was aware that he was drinking to excess and it disturbed him.
In a written report dated 2 June 2001 (exhibit R3), Associate Professor J. McCarthy, Australian Defence Force Academy, stated that records that may have been of assistance in regard to events relating to the applicant's unit in Katherine could not be located at the Australian War Memorial. He stated in his report that the motor vehicle incident could neither be confirmed nor denied. In regard to availability of alcohol, Professor McCarthy said that beer was in short supply in the second half of 1945, and the intended weekly ration of 5 to 6 bottles per man was reduced to 2 bottles per week. However, his report noted that, as a Warrant Officer, the applicant might have had greater access to wine and spirits through the sergeants' mess.
Dr J. Fraser, the applicant's general practitioner, commented as follows (extracts only) on forms submitted in regard to the applicant's claims:
In respect of conditions under application number V2001/75:
Medical Report – Permanent Ligamentous Instability – Osteoarthrosis
Nov. 1958 Back
…
Developed pain lower back for no apparent cause - No trauma? Fall 1977 + driving trucks during war. (T9, p52)
…
Medical Report - Lumbar spondylosis
…
1984 medication -Brufen
Back brace for 1 year in 1958. … Drove heavy army trucks for over 4 years over corrugated roads and had to lift heavy weights to load and unload trucks (T9, p55)
…
Medical Report – Trauma to the Lumbar Spine
…
Has the veteran suffered from a trauma to the lumbar spine?
No (T9, p56)
…
Medical Report – Permanent Ligamentous Instability Lumbar Spondylosis
…
Has the veteran suffered from permanent ligamentous instability of the lumbar spine?
Yes
…
No obvious cause evident although fall from ladder in 1977 and also drove large army trucks…    (T9, p57)
…
Medical Report - Lumbar Intervertebral Disc Prolapse Lumbar Spondylosis
…
Has the veteran suffered from intervertebral disc prolapse at any time?
Yes
…
Specialist in 1958 (Mr Tom King) told Pt that he had multiple lumbar disc degeneration – advised to give up all activities + wear brace for 1 year. Pt not sure whether he had suffered prolapsed disc at any stage.
…
At what levels of the lumbar spine has intervertebral disc prolapse occurred?
Developed pain right buttock radiating down post[erior] aspect RT leg suggesting right sciatica caused by disc prolapse at level of lumbar spine not determined by examination. (T9, pp68-69)
In respect of conditions under application number V2000/1343
Diagnostic Report – Heart problems
…
myocardial infarction   28/8/97
…
coronary occlusion     28/8/97     (T6, p20)
…
Medical Report – Onset - Hypertension
…
When was the accurate determination of hypertension? …8/7/97 …
What do you believe to have been the cause of the hypertension?
Stress
Excess alcohol – younger age
Hypercholesterolaemia     (T6, p23)
…
Medical Report – Onset of heart problems.
…
When was the clinical onset of the heart problems?
28/8/97
What do you believe to have been the cause of heart problem …
? Stress
Hypertension
Past Alcohol Abuse    (T6, p25)
…
Diagnostic Report – Cervical Spondylosis
Are you able to provide a definite diagnosis for this condition?
No — Unsure     (T13, p54)
…
Medical Report – [Clinical] Onset of Cerebrovascular Accident
When was the clinical onset of the cerebrovascular accident?
31/12/99
What do you believe to have been the cause of the cerebrovascular accident?
Hypertension
Anxiety and stress
AMI 1997 Hypercholesterolaemia       (T13, p55)
…
Medical Report – Cervical Intervertebral Disc Prolapse Cervical Spondylosis
…
Has the veteran suffered from a cervical intervertebral disc prolapse at any time?
No   (T13, p56)
…
Medical Report – Trauma to the Cervical Spine Cervical Spondylosis
…
Has the veteran suffered from trauma to the cervical spine?
Yes — … Jarred neck while driving trucks in war [at Katherine] … Client not able to remember details of trauma re symptoms or range of movement of neck. (T13, p57)
In a written report dated 26 November 1999, Dr Fraser stated, in regard to alcohol intake, that the applicant had been admitted as an in-patient from 21 June 1977 to 24 June 1977 with acute pancreatitis, which he thought was due to excessive alcohol intake. Dr Fraser also identified an earlier incident in February 1976 (T11 pp.47-48, V00/1343). Dr Fraser indicated in a Diagnostic Report Substance Abuse, that the applicant started to drink in 1940, that he drank beer and whisky, 3 to 4 standard drinks per day. He stated that the applicant used to drink heavily after discharge but reduced his intake during 1960s when his children were born (T14, pp.75-77 - V00/1343).
CONSIDERATION OF THE ISSUES
Section 9 of the Veterans' Entitlements Act 1986 (the Act) provides:
9(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)…
(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)…
(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;
…
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

For claims made after 1994, the provisions in s120B(3) apply:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Section 119(1)(h) of the Act provides that the respondent and this Tribunal, in deciding claims, must
119 …
…
(h)…take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran,… was not reported to the appropriate authorities.
There was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. In determining whether the claimed conditions are war-caused the Tribunal must first consider all the material before it and decide whether that material raises a contention connecting the injury or condition with the circumstances of the particular service rendered by the veteran.
The second step requires the Tribunal to ascertain whether there is a relevant SoP in force in regard to a condition. The parties agreed that the applicable Instruments are those set out below at paragraph 37.
The Tribunal must then form an opinion whether the contentions identified by the applicant in respect of each claimed condition fits within, that is to say, is consistent with, the template to be found in the SoP for the condition. If a contention fails to fit within the template, it cannot meet the test of reasonable satisfaction and the claim will fail.
In this case there was no dispute between the parties and the Tribunal finds to its reasonable satisfaction that the applicant has established diagnoses of each of the claimed conditions.
At the hearing the parties agreed, and the Tribunal finds that, at the relevant times, the following SoPs were in force:
Instrument Nº 77 of 1998 concerning alcohol dependence or alcohol abuse
Instrument Nº 32 of 2001 concerning hypertension
Instrument Nº 39 of 1999 concerning ischaemic heart disease
Instrument Nº 53 of 1999 (as amended by Nº 31 of 2002) concerning cerebrovascular accident
Instrument Nº 32 of 1999 concerning cervical spondylosis
Instrument Nº 28 of 1999 concerning lumbar spondylosis
After the hearing, two new SoPs were gazetted. Instrument Nº 51 of 2002 (gazetted on 12 June 2002 and amended by Instrument Nº 64 of 2002) revoked the earlier Instrument for cervical spondylosis. Instrument Nº 47 of 2002 (gazetted on 12 June 2002) revoked the earlier Instrument for lumbar spondylosis. The Tribunal must apply the Instrument in force at the time of the decision (Repatriation Commission v Gorton (2001) AAR 370), although the applicant has an accrued right under relevant earlier SoPs in force in the course of the claim.
Mr Hyde submitted that the six claims before the Tribunal fell into two categories. The first category hinged upon an acceptance that alcohol consumption could be related to service. If that was accepted, then the claims for hypertension, ischemic heart disease and cerebrovascular accident could be related through the first link with alcohol abuse. This was because of provisions in the SoPs in regard to each claimed condition that allowed a sequence of connections with service that commenced alcohol abuse. The SoP for alcohol dependence or alcohol abuse provides, in factor 5(b), as follows:
5. The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person's relevant service are:
(a)…
(b)experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse;
From this, Mr Hyde submitted hypertension should be accepted as connected with service because the SoP for hypertension provides that a connection with service arises where a person is suffering from alcohol abuse at the time of the clinical onset of hypertension. The next two links to the claimed conditions were through the SoPs for ischaemic heart disease and for cerebrovascular accident. Each provide, in factor 5(a), that the necessary connection with service is made out where hypertension is present before the clinical onset of ischaemic heart disease and before the clinical onset of cerebrovascular accident. Additionally, for cerebrovascular accident, factor 5(e) of the SoP identifies a connection in the following terms:
…
(e)regularly consuming an average of 300g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident …
The respondent agreed that, if the Tribunal found that factor 5(b) in the SoP for alcohol abuse was met, then the claimed conditions of hypertension, ischaemic heart disease, and cerebrovascular accident followed. The respondent did not dispute the necessary level of alcohol consumption identified in factor 5(e) of the Instrument for cerebrovascular accident.
To satisfy the SoP in regard to alcohol dependence or alcohol abuse, Mr Hyde submitted that this claim depended on the proposition that the applicant could be diagnosed as having alcohol abuse disorder which arose within one year of experiencing a severe stressor. In his submission the motor vehicle accident in 1945 was the severe stressor and it was necessary that the clinical onset of alcohol abuse disorder be some time before the end of 1946.
Mr Hyde submitted that there was evidence of a substantial increase in drinking in the applicant's statement (exhibit A2) and that s119 of the Act applies because the applicant was elderly and had lost his memory due to suffering a stroke. Mr Hyde acknowledged that there were some inconsistencies in the recollections of the applicant and his wife. He said that s119(h) of the Act allows the Tribunal to take into account the effects of the passage of time and the difficulties faced by the applicant in recollecting, particularly having suffered memory loss as a result of a stroke.
Mr Hyde submitted that the respondent conceded the diagnosis of alcohol abuse disorder and the question for the Tribunal was essentially that of clinical onset of the disorder.
Mr Purcell submitted that the provision raised in this case was s9(1)(b) of the Act, which provided that an injury suffered by a veteran will be taken to be war-caused if it arose out of or was attributable to any eligible war service rendered. He said that this raised issues of causation, as the case was not one of operational service, where it was sufficient to identify an occurrence on service. He submitted that Re Holthouse and Repatriation Commission (1982) 1 RPD 287 identifies the meaning of attributable and the distinction between matters related to service and those in the private domain. Mr Purcell submitted that the applicant's decision to go for a drink with mates and his decision to drive while under the influence of alcohol were matters in his private domain and thereby excluded.
Mr Purcell also submitted that the decisions of Denning J in Wedderspoon v Minister for Pensions [1947] 1 KB 562 and Minister of Pensions v Chennell [1946] 2 All ER 719 were authority for the proposition that even in circumstances of war service, not defence service as in Holthouse, if the cause of disablement lies in the personal or domestic sphere, it will be excluded under the legislation. He submitted that this was so in the applicant's case, with war service merely providing the circumstances in which the cause (i.e. the motor vehicle accident) operated.
Mr Purcell submitted that, while s119 had some role to play, its role was limited, and that this was a case where, due to the unreliability of the applicant's memory, greater reliance must be placed on other evidence. He submitted that the evidence of Associate Professor McCarthy, noting no reports of damage to vehicles, should be preferred. He said that, in the absence of a report of vehicle damage, it was unlikely that the applicant suffered a significant injury. He pointed out that there was only recent reliance on the motor vehicle accident in the course of the claim.
In regard to the condition of alcohol abuse disorder, Mr Purcell submitted that the earliest reference to alcohol consumption was in 1977 in the context of examinations for pancreatitis. In his submission, the question of clinical onset of alcohol abuse disorder was unclear. He also submitted that the motor vehicle accident did not meet the definition of severe stressor within the SoP for alcohol abuse, as there was little evidence of threat of death or serious injury. He relied on his submission that it would be excluded as being part of the applicant's private domain, applying Holthouse. He submitted that there was some evidence that pointed to the presence of the condition of alcohol abuse prior to the accident. After the applicant left the army, however, there was evidence that he moderated or reduced his drinking so that the factor for clinical worsening was not present. He also submitted that Dr Cole did not consider that the applicant was suffering from alcohol abuse during or immediately after service.
In regard to the second category of claims, for lumbar and cervical spondylosis, Mr Hyde submitted that these were related to the motor vehicle accident, and were the source of a trauma that met a requirement in factors set out in SoPs for both conditions. Trauma is defined within the SoP for lumbar spondylosis as being:
…
trauma to the lumbar spine means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset; …
Mr Hyde submitted that the earliest evidence of a back problem was the reference made by Dr Fraser that the applicant was diagnosed with multiple lumbar disc degeneration in 1958 by the specialist Dr Tom King (T9, V2001/75).
The SoP for cervical spondylosis provides a definition of trauma to the cervical spine in essentially the same terms as that provided in the Instrument for lumbar spondylosis. As new Instruments were issued for both conditions after the hearing, further submissions were invited from both parties in regard to lumbar spondylosis, as there was reference (T9, V2001/75) to the applicant's heavy lifting on service. The applicant submitted, in regard to the new Instrument, that factor 5(i) applied:
…
(i)manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity; …
It was submitted that the evidence of the back brace, required in the 1950s, showed the onset of lumbar spondylosis at that time. The respondent, in additional submissions dated 12 August 2002 conceded the manual lifting component of factor 5(i), but disputed clinical onset within 25 years of the activity undertaken on service. The respondent submitted that the first documented evidence is an entry by Dr Fraser on 4 September 1977, that the applicant fell from a ladder that day and fractured his ribs (exhibit R1).
Mr Purcell submitted that, as the applicant's wife was only ten years of age in 1947, she could have little knowledge about the state of the applicant's back until at least in the mid-1950s. In regard to the applicant's back condition, he submitted that the use of a back brace in the 1950s did not demonstrate clinical onset of lumbar spondylosis because the use of a brace could easily have been for a temporary back strain. He submitted that there was no reference in medical materials before the Tribunal to back problems until November 1984 and then no further reference until 1998.He submitted that there was no evidence concerning clinical onset of cervical spondylosis, nor was there clear evidence of trauma to the cervical spine. He submitted that the diagnosis of the condition was evident only upon recent X-ray. He submitted that Mr Hadley's report did not offer support for the claim that cervical spondylosis was connected to service.
The Tribunal reached its decision taking into account the oral and written evidence and submissions.
In regard to alcohol dependence or alcohol abuse (Instrument Nº 77 of 1998), the connection raised in the applicant's case is that in factor 5(b), which reads:
…
Experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse.
Experiencing a severe stressor is defined within the SoP and the applicant has raised the motor vehicle accident as the relevant stressor. The Tribunal accepts the evidence of the applicant and his wife that the motor vehicle accident occurred. The report of Professor McCarthy does not rule it out – particularly in view of the Professor's acknowledgment that the records for the unit could not be located in the War Memorial Library. It is in such circumstances that s119(h)(ii) of the Act has a role to play, with its specific reference to circumstances where records are lost or an event has not been reported at the time. The applicant stated that he was severely traumatised by the accident and the Tribunal accepts that a motor vehicle accident, where the person is unable to be released from the car and is left alone overnight in circumstances where he thinks he might drown, falls within the definition of severe stressor.
The Tribunal rejects the submission that the motor vehicle accident does not meet the definition on the basis that it falls within the applicant's private sphere. The Tribunal does not accept that Holthouse is relevant where the issue is eligible war service. The English cases of Wedderspoon and Chennell were decided under legislative provisions different from those applying under the Act. The Tribunal accepts the applicant's evidence that the accident occurred because a new offal pit had been dug without him being aware of it. The Tribunal finds that this was a change in the physical environment that gave rise to injury and has sufficient connection with war service as it is contemplated under the Act. Additionally, s9(2) of the Act provides for accidents occurring on service.
The parties agree, and the Tribunal accepts, that the applicant suffered from alcohol abuse disorder. The difficulty in the applicant's case is that of dating the clinical onset of alcohol abuse. On Dr Fraser's evidence, the applicant modified his drinking at times and the time of onset of a disorder is 1976 (T11, V2000/1343). The evidence is difficult to piece together in regard to commencement and quantities of alcohol from time to time and the applicant's impaired memory means that little assistance can be drawn from the written statements. From the material, it can be said that the applicant may have been drinking lightly prior to the war (T14, V2000/1343). The Tribunal notes that the applicant's wife gave evidence of a single instance of heavy drinking on service that occurred before the motor vehicle accident. The Tribunal does not take the evidence of a single instance of excessive consumption, in particular, in a young person in those times, as evidence of a disorder. The Tribunal accepts that after the war, the applicant carefully avoided drinking when teaching tennis to young people, and that he was not consuming heavily in the decade when his children were born. Neither Dr Cole nor Dr Walton offers support for the onset of alcohol abuse disorder within 12 months of the motor vehicle accident. The evidence taken overall does not point to the clinical onset of alcohol abuse disorder within 1 year of experiencing a severe stressor. Therefore the claim does not fit within factor 5(b) in the Instrument for alcohol abuse disorder. While there was some reference in submissions to clincial worsening of alcohol abuse, (dealt with in factor 5(d)), for the reasons above, alcohol abuse was not pointed to by the evidence as existing before or during service.
As the Tribunal is not reasonably satisfied that the alcohol abuse disorder, suffered by the applicant is war-caused, and the acceptance of the claim for alcohol abuse was the necessary link to the claims for hypertension, cerebrovascular accident and ischaemic heart disease, those claims also fail.
In regard to lumbar spondylosis the Tribunal considered the contentions raised, being those in factors 5(g), suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; and 5(i) manually lifting or carrying loads of at least 35 kg …., the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity.
The question of clinical onset presents difficulties for the applicant for both the conditions of lumbar spondylosis and for cervical spondylosis. In regard to lumbar spondylosis, the evidence of Dr Fraser was that the applicant had lumbar spondylosis from 1984 (T9, V2001/75). However, Dr Fraser identified lumbar intervertebral disc degeneration or prolapse from the history of wearing a back brace for a year in 1958 and from what the applicant reported he was told by his specialist at that time. Mr Hadley identified lumbar spondylosis on the basis of X-rays taken in August 2001. Mr Hadley's evidence was that the vehicle accident was the sort of trauma that can lead to spondylosis, through degenerative changes. He indicated the complaint of pain and the wearing of the brace were part of the pattern of the back degeneration.
The definition of lumbar spondylosis in the Instrument Nº 47 (similarly in Instrument Nº 28 of 1999) provides:
…
For the purposes of this Statement of Principles, "lumbar spondylosis" means degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness …
The evidence from Dr Fraser and Mr Hadley points to the applicant having used a back brace for at least a year, in about 1958, and having continual back problems. This suggests a history of degenerative changes to the lumbar spine that fits within the definition. The clinical onset is pointed to as occurring at least at the time of the need to use the brace. The connection between weight bearing and the onset of lumbar spondylosis fits the template, that is, it is consistent with factor 5(i) of Instrument Nº 47 of 2002.
The Tribunal accepts the applicant was unable to play tennis after the war and sought treatment regularly for persistent back pain. He could only demonstrate tennis strokes. His evidence was supported by that of his wife who had a clear recollection of the back problems and of treatment sought. Wearing a metal brace for a year, at least, is evidence of a serious problem. This may well have been episodic, but the Tribunal accepts the evidence of Mr Hadley that it is part of a sequence. Mr Hadley attributed it to the trauma of the motor vehicle accident. The Tribunal is reasonably satisfied, taking into account all the evidence, that the applicant's lumbar spondylosis is related to war service on the basis of manually lifting or carrying loads of at leat 35kg in the course of his duties in the supply unit and that lumbar spondylosis within the meaning of the description in the SoP was present within 25 years of the weight-bearing.

The Tribunal is also satisfied that factor 5(g) of the Instrument is pointed to by the evidence. Mr Hadley's evidence was that the definition of trauma to the lumbar spine was met, as the applicant had pain and his complaint of stiffness was an indication of altered range of movement. The applicant had told Mr Hadley that he was affected for 10 days. While the applicant's recollections must necessarily be treated with caution, given his memory loss, the Tribunal notes that Dr Walton considered that the applicant had a vivid recollection of the incident itself.
For these reasons, the Tribunal is reasonably satisfied that the applicant's lumbar spondylosis is war-caused within s9 of the Act, with a date of effect of 23 July 2000. The claim for lumbar spondylosis relates to the application for which an extension of time was granted. Section 177(2) of the Act provides for a date no earlier than six months before the date of the application to the Tribunal.
In regard to the claim for cervical spondylosis, the evidence of Dr Fraser as to this diagnosis was equivocal (T13, V2000/1343). Mr Hadley identified cervical spondylosis from X-rays taken in August 2001 (exhibit A5). There are no substantial differences in the earlier Instrument for the cervical spondylosis in regard to the definition, nor in factor 5(g) which appears in each in identical terms: suffering a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis. The factor of weight-bearing by carrying loads, added in the new SoP at factor 5(i) and not provided for in Instrument Nº 32 of 1999, requires weight-bearing be on the head. No claims were made for this.
The Tribunal is not satisfied that the onset of cervical spondylosis is pointed to by the evidence as occurring within 25 years of service, as is required by factor 5(g) of Instrument Nº 51 of 2002, as amended. This means that the applicant has not raised, to a level of reasonable satisfaction, a contention connecting the cervical spondylosis with the existence of factors that are linked to the circumstances of his service. The claim for cervical spondylosis therefore fails.
DECISION
The Tribunal sets aside the decision of the respondent (as affirmed by the Veterans' Review Board on 11 September 2000) in respect of lumbar spondylosis and substitutes the decision that lumbar spondylosis is war-caused, with effect from 23 July 2000. In all other respects the Tribunal affirms the decisions under review.
I certify that the sixty-six [66] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  26 February 2002, 3 April 2002
Date of Decision:  26 August 2002
Counsel for the Applicant:           Mr D. Hyde
Solicitor for the Applicant:           Messrs DeMarchi and Associates
Counsel for the Respondent:       Mr G. Purcell
Advocate for the Respondent:     Ms J. McCulloch, Advocacy Section, Department of
  Veterans' Affairs