Stewart and Repatriation Commission - [2002] AATA 58

DECISION AND REASONS FOR DECISION [2002] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1428

VETERANS' APPEALS DIVISION       )
           Re      Robert John Stewart
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date1 February 2002
PlaceSydney

Decision      The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant qualifies for a Disability Pension at 30% of the general rate with effect from 19 March 1998.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - claim for disability pension - anxiety disorder – alcohol abuse – hypertension - stress while on active service – failure by naval authorities to provide appropriate clinical management of problems – aggravation or contribution to anxiety during service not met – generalised anxiety disorder present at time of onset of alcohol abuse – alcohol abuse not service related – hypertension not service related – disability pension granted for anxiety disorder

Repatriation Commission v. Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193, 206
Repatriation Commission v Wellington (1999) 57 ALD 507
Repatriation Commission v Wederkind [2000] FCA 649

Veterans' Entitlements Act 1986 - ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(8), (9) "Relevant documentary medical evidence", 20(1), 21A, 68(1) "defence service" (a), (b), "member of the Forces", "terminating date", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.

SoP 1/2000 concerning anxiety disorder.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 31/2001 concerning hypertension.

REASONS FOR DECISION

1 February 2002 Mr M J Sassella, Senior Member

History of the application

On 19 June 1998 Robert John Stewart ("the Applicant") lodged a formal claim for a Disability Pension with the Department of Veterans' Affairs ("the DVA") (T4). He lodged this claim in respect of the conditions diabetes mellitus, ischaemic heart disease ("IHD"), hypertension, cerebral ischaemia and adjustment disorder. It was his contention that these conditions were related to his navy service between 1965 and 1982.
On 26 September 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claim in respect of these conditions (T10). The Respondent found no reasonable hypothesis that would link the onset of these conditions to the Applicant's operational service.
On 26 October 1998 the Applicant lodged an application for review of this decision with the Veterans' Review Board ("the VRB") (T11).
On 7 December 1998 the Applicant was informed by the DVA that that it had elected not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).
The decision under review

On 21 July 1999 the VRB affirmed the decision under review, despite adding the diagnosis of chronic anxiety state with depression and alcohol dependence (T14). In relation to the Applicant's smoking history the VRB found the contemporaneous evidence given by the Applicant to medical officers during his service was more credible than his later…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart and Repatriation Commission

Details

AGLC: Stewart and Repatriation Commission [2002] AATA 58
Case: [2002] AATA 58
Decision Date: 1 February 2002

CaseChat Overview and Summary

The matter before the court involved a veteran seeking a disability pension for an anxiety disorder, which he claimed was aggravated by his service. The veteran also claimed that his alcohol abuse and hypertension were related to his service. The Repatriation Commission had denied the pension, and the matter was reviewed by the Administrative Appeals Tribunal. The Tribunal was required to determine whether the veteran's anxiety disorder, alcohol abuse, and hypertension were related to his service and, if so, whether they warranted a disability pension.

The Tribunal considered the relevant legislation and Statements of Principles (SoPs) concerning anxiety disorder, alcohol dependence or abuse, and hypertension. It also considered the evidence provided by the veteran and medical experts. The Tribunal found that the veteran's anxiety disorder was not related to service as it existed before his service, and the Tribunal could not be satisfied beyond reasonable doubt that the lack of appropriate clinical management during service had contributed to the disorder. The Tribunal also found that the veteran's alcohol abuse and hypertension were not related to his service, as other factors such as hereditary disposition and lifestyle choices were more likely causes.

The Administrative Appeals Tribunal concluded that the veteran was not entitled to a disability pension for his anxiety disorder, alcohol abuse, or hypertension, as they were not related to his service. The Tribunal's decision was based on the evidence presented and the relevant legislation and SoPs. The veteran's appeal against the Tribunal's decision was ultimately unsuccessful.

The court's decision highlights the importance of establishing a causal link between a veteran's condition and their service in order to be eligible for a disability pension. The Tribunal carefully considered the evidence and relevant legislation in making its decision, and the court found no error in the Tribunal's reasoning or outcome. The veteran's appeal was dismissed, and the decision of the Administrative Appeals Tribunal was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

On 20 September 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of this decision (T1).Background The Applicant was born on 4 October 1943. He was the second of three children (all by different fathers) and lived with his grandparents until the age of 15. The Applicant did not meet his mother until he was 16 (Ex A1). At the age of 12 or 13 his grandmother died and he was cared for by his grandfather and uncle. The Applicant married in 1965. He and his wife have one son and one daughter. The Applicant rendered eligible service (also being operational service) whilst in transit to and from Vietnamese territorial waters during the following periods: He also rendered defence service from 7 December 1972 to 19 February 1982. He was discharged at his own request. The Applicant is not currently in receipt of a Disability Pension. The Applicant is currently unemployed but has had about six jobs since 1982. He has worked as a security guard and also at McDonalds (T9). The Applicant has not worked since December 1997, often losing his jobs because of aggressive behaviour and drinking (T13). The Applicant receives a Service Invalidity Pension and a Defence Force Retirement and Death Benefits pension.Relevant legislation The following provisions in the Act are relevant. Sections: 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(8), (9) "Relevant documentary medical evidence", 20(1), 21A, 68(1) "defence service" (a), (b), "member of the Forces", "terminating date", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.The following extracts from SoPs are relevant.SoP 1/2000 concerning anxiety disorder.SoP 76/98 concerning alcohol dependence or alcohol abuse.SoP 31/2001 concerning hypertension.Veterans' Entitlements Act 1986…6C Operational service - post World War 2 service in operational areas (1)Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b)a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act:(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…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;…Part II - Pensions, Other than Service Pensions, for Veterans and their Dependants…Division 2 - Eligibility for pension13 Eligibility for pension(1) Where: …(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act.…Division 3 - Claims for pensions and applications for increases in pensions…14 Claim for pension(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).Note 1: some dependants do not have to make a claim (see section 13A).Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).…(3) A claim for a pension:(a)shall be in writing and in accordance with a form approved by the Commission;(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim....19 Determination of claims and applications...(8)Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence.(9) In this section:……relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:(a) in support of the claim or application; or(b)if a part only of the claim or application was granted—in support of that part of the claim or application.…20 Dates of effect that may be specified in respect of grant of claim for pension(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…Division 4 - Rates of pensions payable to veterans21A Determination of degree of incapacity(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.(2)Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.(2)The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.…Part IV - Pensions for Members of Defence Force or Peacekeeping Force and their DependantsDivision 1 - Interpretation68 Interpretation(1) In this Part, unless the contrary intention appears:…defence service means:(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and…member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A; …terminating date means the date on which the Military Compensation Act 1994 commences.…69 Application of Part to members of the Forces (1) Subject to this section, where a person:(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;this Part applies to the person:(c) if the person:(i)has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and(ii)has, whether before or after that date, completed 3 years' effective full-time service as such a member; or…Division 2 - Eligibility for pension70 Eligibility for pension under this Part(1) Where:…(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d)in the case of the incapacity of the member—pension by way of compensation to the member;in accordance with this Act.71 Application of certain provisions of Part II(1)Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.(2)For the purposes of the application of Divisions 2A, 3, 6 and 7 of Part II as provided in subsection (1):(a)a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;(b)a reference in those divisions to the death of a veteran that was war-caused shall be read as a reference to the death of a member of the Forces or a member of a Peacekeeping Force that was defence-caused;(c)a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;(d)a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and(e)a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.Division 3 - Rates of pension73 Application of Divisions 4 and 5 of Part II(1)The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.…Part VIII - General Provisions Applicable to Pensions etc.…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.(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;(c) the death of a person is war-caused or defence-caused; or(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1)This section applies to any of the following claims made on or after 1 June 1994:(a)a claim under Part II that relates to the operational service rendered by a veteran;(b) a claim under Part IV that relates to:(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or(ii) the hazardous service rendered by a member of the Forces.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).…(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.…120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles(1)This section applies to any of the following claims made on or after 1 June 1994:(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.Note 1: Subsection 120 (4) is relevant to these claims.Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).(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.…Part XIA - the repatriation medical authorityDivision 1 - Establishment, functions and powers196B Functions of Authority(1) This section sets out the functions of the Repatriation Medical Authority.Determination of Statement of Principles(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:(a) operational service rendered by veterans; or(b)peacekeeping service rendered by members of Peacekeeping Forces; or(c) hazardous service rendered by members of the Forces;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(d) the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.Note 1: For sound medical-scientific evidence see subsection 5AB (2).Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).Note 3: For factor related to service see subsection (14).(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:(a)eligible war service (other than operational service) rendered by veterans; or(b)defence service (other than hazardous service) rendered by members of the Forces;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(c) the factors that must exist; and(d)which of those factors must be related to service rendered by a person;before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.Note 1: For sound medical-scientific evidence see subsection 5AB (2).Note 2: For defence service and hazardous service see subsection 5Q (1A).Note 3: For factor related to service see subsection (14).…196D Disallowable instrumentA determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.…

Evidence

Evidence Before The Court

Mr Dawson was adamant that his objection should stand because the report was being advanced as a medical assessment. The Tribunal took the view that, while the opinion of a psychologist would be less valuable than that of a medically qualified person in relation to strictly medical matters, the expertise of a psychologist may cause his or her report to be valuable in relation to such matters as history, vocational potential and administration of psychological tests. The fact that the Respondent proposed to use Mr Cipriani's report to assist in establishing a diagnosis did not mean that the report should be excluded. The Tribunal was free to reject its use for that purpose but it could use it for other purposes. Alternatively, it might be useful to consider Mr Cipriani's report if the medical experts disagreed as to the appropriate diagnosis. There may be information within it not available elsewhere. It was for these reasons that the report was accepted as Exhibit R4.Findings on material questions of fact with reference to the evidence and other material in support of those findings The Tribunal makes the following uncontentious findings: The hypothesis advanced for the Applicant was that he was unable to obtain from the navy appropriate clinical management for his psychiatric condition. He had that condition prior to going to Vietnam and it was worsened by the inability to obtain appropriate treatment (transcript, 13.3.01, P-8). There is a relevant SoP, namely SoP 1/2000 concerning anxiety disorder. It is necessary to ascertain whether the hypothesis advanced is consistent with the template provided in the SoP. There appears to be an issue as to whether the Applicant has anxiety disorder or some other psychiatric condition. The existence of a psychiatric condition has, under s 120(4) of the Act, to be established to the Tribunal's reasonable satisfaction. The consistent history of problems evidenced over many years in T3 and the particular analysis provided by Dr Dinnen in Ex A1 suffice to satisfy reasonably the Tribunal that the Applicant suffers from an anxiety disorder. This is with some misgiving as there is no substantial evidence as to the Applicant's anxiety levels on a day to day basis. Not even Mrs Stewart canvassed this in her evidence. However, the Tribunal is satisfied that the Applicant has a psychiatric condition above and beyond alcohol abuse/dependence and there is no other diagnosis seriously presented. Dr Dinnen considered that the Applicant's case satisfied the requirements in factors 1(c) ["experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder"] and (d) ["inability to obtain appropriate clinical management for generalised anxiety disorder"] of SoP 48/94. In SoP 1/2000 the equivalent factors are: The Tribunal is not satisfied that the hypothesis posits a severe psychosocial stressor associated with operational service. Clause 8 of the SoP requires that an identifiable occurrence must evoke feelings of substantial distress in the individual. Examples are being shot at, the death or serious injury of a close friend or relative, assault, major illness or injury, divorce, separation, loss of employment and major financial or legal problems. Dr Keshava (T13) describes "traumatic experiences" in Vietnam only vaguely and unhelpfully. He does refer to the Applicant being on the top deck of the ship in Vung Tau Harbour when shells were fired from the air base and helicopters were flying around firing. He said he thought they would "all die". This does not amount to the Applicant being shot at. Mr Cipriani (Ex R4/13) and Dr Schultz (Ex R2/3) cover similar ground, with similar lack of any immediate danger to the Applicant.

Decision

Reasons for decision

On 7 December 1998 the Applicant was informed by the DVA that that it had elected not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).The decision under review On 21 July 1999 the VRB affirmed the decision under review, despite adding the diagnosis of chronic anxiety state with depression and alcohol dependence (T14). In relation to the Applicant's smoking history the VRB found the contemporaneous evidence given by the Applicant to medical officers during his service was more credible than his later statements about his smoking history. The Applicant reported his smoking consumption as being 20 cigarettes a day on 8 August 1973, 29 May 1975 and 10 December 1981. It was therefore found that his smoking consumption was established before his first period of operational service which occurred some 40 months later. The Applicant's smoking habit was not service-caused. Again, in relation to his alcohol consumption, the Applicant's later evidence was found to be not as credible or reliable as that given to medical officers during his navy service. A history of being a light drinker, or consuming only three drinks a day, was recorded on 8 August 1973 and 10 December 1981. The VRB found that the Applicant's alcohol consumption commenced at about two cans of beer a day and increased to around three cans a day by the end of his service. Therefore, any alcohol dependence was found not to be related to navy service. The condition diabetes mellitus was found not to be service-related. This flowed from the condition's possible relationship to cigarette smoking, which had already been found not to be related to his time in the navy. Further, the Applicant's mother was an insulin dependent diabetic, and diabetes mellitus is caused by an hereditary disposition in most if not all cases. The VRB then examined the condition of IHD. Diabetes mellitus is a possible factor that can cause the condition but the VRB had already found that this was not service-related. Smoking was also dismissed as a causal factor for the same reason. Dyslipidaemia was then examined as a possible cause but the Applicant's medical documents produced no evidence that this condition was related to his service in any way. In relation to the condition of hypertension, the VRB found that the Applicant's contention that alcohol dependence was the contributing factor was unsustainable in that the VRB had already found that this was not related to his navy service. Similarly cerebral ischaemia was found not to be service-related in that the possible contributing factors of smoking, diabetes mellitus and IHD were not in themselves related to service. The VRB then examined the Applicant's adjustment disorder. Factors (a), (b) and (c) of the relevant SoP were investigated as possible causes. The report of Dr Subhas (T9) contained the opinion that the adjustment disorder was related to the Applicant's various physical problems, however the VRB had already found that these were not service related. Therefore factors (a) and (b) of the SoP were eliminated as possible service related caused. Factor (c) would only be relevant if the condition was present before or during his service. The condition was not diagnosed until 1998, 16 years after cessation of service.

Ratio Decidendi

Legal Principle Established

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