Tozer and Repatriation Commission
[2006] AATA 1101
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1101
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/107
VETERANS' APPEALS DIVISION ) Re BARRY TOZER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date20 December 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that generalised anxiety disorder; alcohol dependence or abuse and hypertension are war-caused – consideration of statement of principles – US aircraft testing bomb in Vung Tau Harbour – decision affirmed
Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 20, 120(1), 120(3), 120A, 196A and 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364Lees v Repatriation Commission (2002) 125 FCR 331
Stoddart v Repatriation Commission (2003) 74 ALD 366
Hill v Repatriation Commission [2005] FCAFC 23
Statement of Principles Instrument No 35 of 2003
Statement of Principles Instrument No 3 of 2004
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 1 of 2000REASONS FOR DECISION
20 December 2006 Mr J G Short (Member) 1. Barry Tozer served in the Royal Australian Navy (the Navy) from 25 July 1964 until 1 August 1973. His operational service, which was also eligible service, included service aboard HMAS Yarra from 22 February 1970 until 1 March 1971. Mr Tozer also had a period of eligible defence service from 7 December 1972 until 1 August 1973.
2. On 23 May 2005 Mr Tozer lodged a claim for acceptance of hypertension and emotional disorder, later diagnosed as hypertension and anxiety disorder. The claim was rejected by the respondent (the Commission) on 6 July 2005. On 31 January 2006, the Veterans’ Review Board (VRB) varied the diagnosis of anxiety disorder to generalised anxiety disorder and alcohol dependence and affirmed the decision as varied.
issues before the tribunal
3. The issue before me is whether the abovementioned conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). The parties have accepted the diagnoses of Mr Tozer’s conditions, that is conditions of hypertension, generalised anxiety disorder and alcohol dependence.
4. It is common ground that if Mr Tozer is successful in his claim the earliest date of effect, pursuant to s 20 of the VE Act, would be 23 February 2005.
mr tozer’s assertions
5. Mr Tozer asserts in the present proceedings that a stressful event occurred during his operational service, particularly his service upon HMAS Yarra during that ship’s period in Vung Tau Harbour on 27 February 1970, which caused both or either of his conditions of alcohol dependence and generalised anxiety disorder, or in the alternative, that this stressor caused one of those conditions, which in turn caused the other and that either of those conditions is likely to have caused his hypertension.
6. Mr Tozer referred to an incident when he was standing with others on the top aft deck of HMAS Yarra on 27 February 1970 observing activity in Vung Tau Harbour. A jet flew past the ship and at a distance of between one half a kilometre and one kilometre, dropped a bomb into Vung Tau Harbour. Mr Tozer’s contention is that this incident acted as a severe stressor and/or severe psychosocial stressor, causing directly or indirectly, the conditions, the subject of this appeal.
legislative background
7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“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; …”
8. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
9. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
10. As Mr Tozer has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“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.”
11. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
12. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA 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 operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and 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 the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
mr tozer’s evidence
13. Mr Tozer said that he was 18 years of age when he joined the Navy. He said that he did not drink alcohol at that time. He said that the drinking age limit was then 21 years of age. He said that he started drinking alcohol within one year to 18 months of joining the Navy. He referred to peer pressure. He said however that he did not really like drinking and consequently did not drink a lot at that time. Mr Tozer said that save for one occasion, he did not binge drink. He said that during his period of service on HMAS Supply (prior to his service upon HMAS Yarra) he was allocated one can of beer per night. He added that he usually did not even drink this amount. Mr Tozer said that he was keen for advancement and consequently applied for promotion. From mid 1967 to mid 1968 he performed the necessary training and was granted promotion to a leading seaman in mid 1968. He said that from 1967 to 1968 he was in control of his alcohol consumption and did not drink to excess. He transferred to HMAS Yarra in August 1968.
14. In cross-examination, Mr Tozer was referred to an alcohol questionnaire signed by himself on 27 July 2000. The questionnaire refers to Mr Tozer as, from mid 1968, drinking “anything and amount I could get my hands on, beer, wine, spirits – because of my operational service”. The same questionnaire refers to Mr Tozer as having consumed 20-28 cans of beer a week in 1964. The reason provided was “I joined the service”. The information provided in this questionnaire is clearly at odds with the evidence provided by Mr Tozer at hearing. Mr Tozer said that the handwriting in the questionnaire is not his. However he confirmed that the document was signed by himself. He said that he could not explain where the incorrect information had come from or why he had signed a document containing incorrect information.
15. Mr Tozer was also referred to the reasons for decision provided by the VRB following its hearing of Mr Tozer’s application on 31 January 2006. In reference to the alcohol questionnaire, the VRB recorded Mr Tozer as stating that he completed the questionnaire at the Vietnam Veterans’ Association of Australia office. He is recorded as saying that there were a lot of people there at the time and he had to complete a lot of forms and that he may have exaggerated his alcohol consumption when he completed the form. Mr Tozer further explained that the quantities may not have been correct because he experiences difficulty with concentration and has memory lapses due to his prolonged and heavy drinking.
16. In reasons for decision provided by an earlier VRB (2 April 2001), the VRB made the following comment:
“In response to a question from the Board, Mr Tozer said that the alcohol history completed by him on 27 July 2000 and copied at folios 17 to 19, was accurate. The Board noted that in that report the veteran stated that he had commenced drinking in 1964 at a rate of 20 to 28 cans a week and in 1967 his consumption was 10 to 12 pints a day.”
17. Mr Tozer said that he does not understand why he made this statement to the VRB. He repeated that the content of the alcohol history was wrong.
18. Mr Tozer confirmed at hearing that the only incident which he now relies upon as being a severe stressor or a severe psychosocial stressor occurred during HMAS Yarra’s period in Vung Tau Harbour on 27 February 1970. Records indicate that HMAS Yarra entered Vung Tau Harbour at around 6.30am and left at about 10.30am.
19. Mr Tozer said that during this period of approximately 4 hours, HMAS Yarra had been between one half and one kilometre from shore. He said that the ship’s crew were allowed on the upper deck to look around. He could see the beach and the township. He said that he could see a great deal of activity, including boats trawling for evidence of attempted sabotage. He said that at one point he recalled a silver flash going past the stern of HMAS Yarra. He said that he then noticed a water spout about half a kilometre away. At about the same time he heard a sound which he now considers to be the explosion of a bomb in water. He said that he and others moved inside the vessel and that within about a minute the ship’s captain announced that an American jet had tested a bomb while on a training exercise.
20. Mr Tozer said that initially he did not know the nationality of the aircraft involved. He said that someone had referred to Russians. He added that the crew understood that Russian planes were not in the area. He said that when he and others moved inside the ship, they did not know what would happen next. He said that at the time he, along with the other crew members, made light of the incident, but that in his private thoughts he was disturbed by the incident.
21. Mr Tozer said that during the weeks and months following HMAS Yarra’s first period in Vung Tau Harbour he thought something was happening to himself. He said that he would wake at night with cold sweats and a nervous jumping. He later said that his wife, whom he married in 1973, had reported this twitching or jumping during his sleep. Mr Tozer went on to say that within 6 months of this first trip he became a loner and volunteered for more service on vessels in order to stop himself drinking. He said that his alcohol consumption had become heavier.
22. Mr Tozer said that after this trip he would drink at home and in harbour, almost every night. He said however that he would stop drinking while on board ship. It was usually a week at a time between ports.
23. Mr Tozer said that he married in late 1973. He had a daughter in 1978. He said that things were “Okay for quite a while”. After about 6 to 9 months of marriage his beer drinking increased to between 48 to 72 stubbies a week. He would also drink some rum. He said that he ceased drinking rum in the early 1980s, but that his beer consumption has stayed at a rate of about 48 to 72 stubbies a week. Mr Tozer’s marriage broke down and he re-partnered in 1994.
24. Mr Tozer said that he does not like to take medication and consequently does not take any medication for his generalised anxiety disorder. He does see a psychologist recommended by the Vietnam Veterans’ Counselling Service.
25. In relation to a number of medical reports provided by psychiatrist Dr Ewer, the most recent of which was dated 16 September 2005, Mr Tozer said that he had had trouble relating to Dr Ewer. In cross-examination Dr Ewer’s comments relating to the reliability of the history provided by Mr Tozer, were put to Mr Tozer. As mentioned, Mr Tozer had indicated that he could not understand why he had told the VRB in 2001 that the alcohol questionnaire indicating significant consumption prior to operational service, had been accurate. He stated that it was in fact inaccurate.
26. It was also put to Mr Tozer that he had been the subject of a charge of being absent without leave, relating to alcohol consumption in June 1968 (prior to service upon HMAS Yarra). Mr Tozer agreed that he had been drunk on this occasion and unable to get to work the following day. He said that he had little recollection of the night before, but confirmed that he had been drunk.
27. Mr Tozer was referred to Dr Ewer’s report dated 31 October 2000. In that report Dr Ewer had referred to Mr Tozer relating three stressful experiences. One of the incidents was “Mr Tozer told me that he was very frightened by aeroplanes flying overhead and then dropping bombs nearby. He could hear and see the bombs exploding”. Mr Tozer said that he did not recall telling Dr Ewer of more than one aeroplane or more than one bomb.
28. Mr Tozer was also referred to Dr Ewer’s report dated 16 September 2005 in which Dr Ewer had expressed reservations about the accuracy of the information provided to him by Mr Tozer. In that report Dr Ewer recorded Mr Tozer as indicating that at the time the American aircraft dropped the bomb, he had felt “intensely frightened”. Dr Ewer pointed out that this was not a term used in earlier histories provided by Mr Tozer. Dr Ewer, at pages 5/6 of his report dated 16 September 2005, makes the following comments under the heading “Diagnosis”:
“Because of the inconsistencies I have referred to above, I am concerned about Mr Tozer’s reliability as a historian. I am not suggesting he is a dishonest historian and I note there are a number of other plausible explanations for the inconsistencies I have referred to. Whilst I do not know what the explanation for the inconsistencies is, they are significant and they cause me to be concerned about Mr Tozer’s reliability as a historian. Notwithstanding these concerns I am reasonably satisfied he is suffering from Generalised Anxiety Disorder and Alcohol Dependence.”
At page 6 of the same report, Dr Ewer said:
“… I was also concerned on this occasion Mr Tozer told me he was ‘intensely frightened’ by the bomb incident. He did not use this term when I assessed him in the year 2000. It is difficult to know whether on this occasion he was accurately telling me his feelings during that occasion or whether his history was influenced by the dispute process with the Department of Veterans’ Affairs.”
29. Mr Tozer repeated that he had difficulty relating to Dr Ewer.
consideration
30. The claimed conditions of generalised anxiety disorder, alcohol dependence and hypertension, are the subject of SoPs. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
31. In considering whether there is an hypothesis connecting Mr Tozer’s conditions with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
32. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
33. The material before me includes a more recent statement made by Mr Tozer to Dr Ewer to the effect that the bomb incident made him “intensely frightened”. The material also indicates that Mr Tozer was found to have hypertension shortly before his discharge from service. The SoP relating to hypertension is Instrument No 35 of 2003 as amended by Instrument No 3 of 2004. In respect of alcohol dependence or alcohol abuse, the relevant SoP is Instrument No 76 of 1998 and in respect of generalised anxiety disorder the SoP is Instrument No 1 of 2000. There are related SoPs dealing with a connection with defence service. However, for the purposes of these proceedings, no submission was made in respect of any period of defence service.
34. I regard the material before me as raising hypotheses connecting Mr Tozer’s three claimed conditions, directly or indirectly, with his war service. I have also found that SoPs have been issued in respect of each condition and consequently steps 1 and 2 of Deledio exist.
35. I now turn to the third step as enunciated in Deledio in respect of each condition. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
alcohol dependence
36. The SoP relating to alcohol dependence includes factor 5(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”.
37. It is also possible that factors 5(a) and 5(c) (suffering a psychiatric disorder at the time of the clinical onset or worsening of alcohol dependence) may be established if Mr Tozer where successful in this claim for acceptance of generalised anxiety disorder as being war-caused. Unfortunately for the success of Mr Tozer’s application, for the reasons discussed further on in this document, Mr Tozer’s claim for acceptance of generalised anxiety disorder has been unsuccessful.
38. Returning now to the issue of whether the bomb incident as described by Mr Tozer may satisfy the template for experiencing a severe stressor, I have noted that His Honour Mansfied J in Stoddart v Repatriation Commission (2003) 74 ALD 366 at paragraph 50 said that the words “that involved actual or threat of death or serious injury” explains the nature of the event or events which must be experienced. His Honour decided that those words contemplated an objective analysis, he then added “I do not think it provides for idiosyncratic and personal perceptions of events which judged objectively, do not in fact fall within the adjectival clause”. In Hill v Repatriation Commission [2005] FCAFC 23 the Full Federal Court decided (paragraph 98) that “… to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio had in mind”.
39. Whether Mr Tozer has exaggerated his subjective feelings is not a matter for me to determine at this stage. He did eventually provide evidence to Dr Ewer that he felt “intensely frightened”. However, in order to experience a severe stressor, a person much experience, witness or be confronted with “an event or events that involve actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror”. In this case, the evidence provided by Mr Tozer was that the first he knew of a bomb being dropped was after he saw a spout of water approximately half a kilometre or more astern of HMAS Yarra. The captain soon advised that an American jet had dropped a bomb while undertaking a training exercise. I do not consider that observing this incident from approximately half a kilometre away is capable of fulfilling the objective element of experiencing a severe stressor. I do not consider that such an event “might evoke intense fear, helplessness or horror”.
40. If I am wrong in considering that the hypothesis suggested to connect alcohol dependence with war service does not meet the template provided in the SoP, and if consequently I were required to consider step 4 of Deledio, then I would be satisfied, beyond reasonable doubt, that Mr Tozer has exaggerated his subjective feelings to the point of eventually describing those feelings as “intensely frightened” to Dr Ewer. I would find as a fact that Mr Tozer did not satisfy the subjective element of the definition of a severe stressor, that is I would be satisfied beyond reasonable doubt that Mr Tozer did not experience intense fear, helplessness or horror upon realising that a water spout approximately half a kilometre astern of HMAS Yarra was caused by a pilot dropping a bomb. In these circumstances Mr Tozer’s claim for acceptance of alcohol dependence as war-caused fails.
generalised anxiety disorder
41. As mentioned, the relevant SoP relating to this condition is Instrument No 1 of 2000. Factor 5(a)(ii) is “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
42. While it may have been possible for Mr Tozer to have succeeded on the basis of factors 5(a)(iii) “having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder” or 5(a)(vii) “having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder”, in order for these factors to be successful, I would need to find that Mr Tozer’s alcohol dependence was war-caused. I have been satisfied that this is not the case.
43. Factor 5(a)(ii) is “experiencing a severe psychosocial stressor”. I note that this term has been defined as meaning:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
44. Although I have found steps 1 and 2 of Deledio established, experiencing a severe psychosocial stressor involves both a subjective and objective element. The material before me does not, in my view, include the necessary objective element to satisfy the SoP. There is no suggestion that HMAS Yarra or its crew were being shot at or that the incident of a bomb exploding approximately half a kilometre astern of HMAS Yarra, was an occurrence involving death or serious injury of a close friend or relative or indeed that the feelings associated with any of the other examples provided in the definition could have arisen in an individual in the circumstances described by Mr Tozer. As such I do not consider that the bomb incident meets the template in factor 5(a)(ii) for generalised anxiety disorder.
45. If I am wrong in my consideration of the third Deledio step, then I would be satisfied beyond reasonable doubt that Mr Tozer has exaggerated his subjective feeling arising out of the incident and that he did not experience feelings of substantial distress akin to feelings evoked by individuals who had been shot at or subjected to the other examples of events provided in the definition of severe psychosocial stressor. The application would fail at step 4 of Deledio.
46. In the light of the above mentioned circumstances it is unnecessary for me to make findings in relation to the clinical onset of Mr Tozer’s claimed conditions of alcohol dependence and generalised anxiety disorder.
hypertension
47. Hypertension may be related to war service through factor 5(b) of Instrument No 35 of 2003 as amended by Instrument No 3 of 2004 being “consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol”. A similar definition is provided in respect of clinical worsening at factor 5(q).
48. It is also possible that factor 5(n) may have been established, that is “suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension”. The contentions made in respect of hypertension however depend on the acceptance of alcohol dependence or generalised anxiety disorder as being war-caused, particularly that the rate of alcohol consumption resulted from these conditions. As I was satisfied beyond reasonable doubt that neither of these conditions were war-caused, the abovementioned factors relating to hypertension are not established.
49. I affirm the decision under review, that is I find that Mr Tozer’s generalised anxiety disorder; alcohol dependence and hypertension are not war-caused.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ...........J Coulthard.............................................
AssociateDate of Hearing 16 November 2006
Date of Decision 20 December 2006
Counsel for the Applicant Mr S Churches
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe (DVA)
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