Waterhouse and Repatriation Commission - [2000] AATA 1038

DECISION AND REASONS FOR DECISION [2000] AATA 1038

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/300

VETERANS' APPEALS DIVISION          )
           Re      DOUGLAS WATERHOUSE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date24 November 2000
PlaceCanberra

Decision      The tribunal affirms the reviewable decision.
  ..................(Sgd).....................
  Pamela Burton
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – whether malignant neoplasm of the colon with metastases is "war-caused" – whether veteran consumed sufficient amount of alcohol before onset of malignancy of the colon to raise reasonable hypothesis linking malignancy with alcohol consumption - whether veteran's increased consumption of alcohol arose out of or was attributable to war service
Legislation
Veterans' Entitlements Act 1986
Authorities
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Sharkey and Repatriation Commission(1988) 15 ALD 782

REASONS FOR DECISION

24 November 2000 Pamela Burton, Senior Member

This is an application for review of the decision of the Repatriation Commission dated 29 April 1998 denying that the veteran's condition of malignant neoplasm of the colon with metastases was war-caused. The Veterans' Review Board ("the VRB") affirmed the decision on 26 August 1998.
Mr Paul Crabb represented the veteran and Ms Susie Breuer represented the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition, medical reports and a statement of the veteran were tendered at the hearing. The tribunal heard the evidence of the veteran. Ms Kate Barrelle, clinical and forensic psychologist, gave telephone evidence on the applicant's behalf. Associate Professor Mattick, specialist in behavioural science, working in the National Drug and Alcohol Research Centre at the Faculty of Medicine of the University of New South Wales, gave telephone evidence on behalf of the respondent.
The issues
The Veterans' Entitlements Act 1986 ("the Act") requires that for a claim to be accepted the disability must be related to operational or eligible defence service. The issue before the tribunal is whether the veteran's condition of malignant neoplasm of the colon with metastases, is war-caused. This raises the issues of whether the veteran consumed a sufficient quantity of alcohol prior to the onset of the malignancy in the colon to raise a reasonable hypothesis linking the malignancy with the alcohol consumption, and whether his alcohol consumption arose out of or is attributable to the veteran's war service. In considering these matters, the period (or periods) of the veteran's operational or eligible defence service needs to be identified.
The veteran was born on 3 June 1916 and says that he enlisted in the Australian Army on 24 October 1942. It is not in dispute that between 29 November 1942 and 15 January 1943 the veteran was a commissioned officer serving in the Malaria Control Unit of the Australian Army Medical Corp. The respondent says that this period constitutes a discreet period of "eligible service" for the purpose of the Act. It is not in dispute that from 12 August 1943 to 9 October 1943 the veteran served in New Guinea and that this period constitutes "operational service" for the purpose of the Act. He was transferred to the Reserve of Officers on 28 October 1943 (ST14A, p.64).
The veteran says that his war service continued after his return from the first period of service, which he says he served in Cairns and in the Northern Territory, until a further period of active service in New Guinea. He argues that although he returned to his civilian employment as an entomologist with the Council for Scientific and Industrial Research, (the "CSIR", which later became the CSIRO) on his return from Cairns, he continued to carry out research on diseases under the Australian Army's orders. He remained available to be transferred to active service when required to undertake field tests of his research. He says that the period from 15 January 1943 until 12 August 1943 when he was next called to active service, formed part of his Army service. He contends therefore, that the whole period from 29 November 1942 to 9 October 1943 constitutes "operational service" for the purpose of the Act.
The respondent concedes that if the period between the veteran's service in Cairns and his service in New Guinea constitutes eligible service, then the entire period from 29 November 1942 to 28 October 1943 constitutes operational service for the purpose of the Act. The veteran concedes that, should the tribunal find that he served two distinct periods of service, then the first period is "eligible war service" and the second period is "operational service" for the purpose of the Act.
The first issue for determination is whether the veteran had one continuous period of war service from 29 November 1942 to 28 October 1943, or two distinct periods as referred to above, broken by the veteran's return to his civilian employment with the CSIR. The issue impacts on the tribunal's consideration of whether the drinking pattern the veteran acquired and the consequent level of the veteran's consumption of alcohol before the onset of his claimed condition are related to the circumstances of the veteran's war service.
The evidence as to service
The veteran's evidence is that in August 1942, through his work at CSIR, he discovered an insect repellent for possible use by the Army in the tropics. The veteran discussed the possibility of his joining the Army with his then immediate supervisor, Dr Mackerras, who had already enlisted. Dr Mackerras suggested that as the Army had no resources for research the veteran's malaria control research for the Army should be undertaken at the CSIR. The veteran enlisted with the Army on 24 October 1942. He was medically examined on the same day, inducted and issued with personal equipment including webbing and a revolver. On 19 November 1942 the veteran left Canberra for Cairns to test the product of his research.
The veteran's duty in Cairns was terminated on 15 January 1943 (ST14A). He denies having a medical discharge examination on his return to Canberra, and this evidence is not challenged. The veteran retained the personal equipment as it was expected that he would be called on to go away again. The Army agreed that until the veteran was actually required to undertake fieldwork, he could return to the CSIR, to carry on his research work. He was nevertheless required by the Malaria Control Unit of the Army (with the consent of his employer) to continue his research work on a series of mosquito oils and other repellents against fleas and flies for the control of malaria for use by the Australian Army. The veteran said that in this period he was under the direction (and he indicated that a direction was akin to an order) of the Army. This is not disputed. The veteran explained that the special arrangement made for him to continue his work at the CSIR was because the CSIR was equipped with the relevant laboratory and other resources required by the veteran to undertake his research.
The respondent pointed to evidence of the arrangement in the Foreword to the report on the work carried out by the veteran and his colleague, Major Peter McCulloch. The report was before the tribunal (T11, commencing at p.35) and the respondent attached a copy of the Foreword (not included in the T-documents) to its submissions. It reads in part:
The cooperation of the Council for Scientific and Industrial Research was therefore sought; and the facilities of its Division of Economic Entomology at Canberra, and the services of Mr. Waterhouse and his associates, were promptly and generously made available to the Army. Laboratory investigations were pushed ahead; and Mr Waterhouse was brought on to the Reserve of Officers, and called up for full-time duty when required. He was thus able to continue his work in Canberra as an officer of the C.S.I.R, and pursue it into the field as an officer of the A.A.M.C, at first in collaboration with Major McCulloch, and later in association with other Army entomologists
The arrangement suited the veteran, as the CSIR resumed responsibility for his salary at the civilian rate, higher than his army wage. As an Army Reserve Officer, the veteran remained on call for transfer to active service, which in fact occurred on 12 August 1943 when he was required to undertake and supervise field tests of the mosquito repellent in New Guinea. He reported that his research work was successful, and the compound Dimethyl Phthalate was issued and used as the mosquito repellent for Australian and Allied forces in the Pacific region.
In the veteran's claim form lodged 12 March 1998 (T4, pp.13, 14), he recorded his actual service as two separate periods. However, at the hearing the veteran said that his formal discharge from the Army did not occur until he was removed from the medical Reserve of Officers in 1946 or 1947, at the close of the war. Until that time he remained on call for service. This was not challenged.
After the conclusion of the hearing the respondent lodged a further document, being a letter dated 26 May 2000 from D.R. Meehan for Commanding Officer to the Deputy Commissioner, Department of Veterans' Affairs in relation to the veteran's service. Relevantly it states:
According to our records, N444523 – D.F.Waterhouse enlisted in the Australian Military Forces on 29 November 42, where he was on special duty in Entomology research, he was discharged 15 January 43. This service is recorded on the ex member's record of service as Sydney. We have no record of Mr Waterhouse being in the Cairns area.
Further information may be available from the Department of Veterans' Affairs, Adelaide, regarding World War 11 malaria research conducted by the Australian Army Medical Research unit, Cairns, or a list of MRU files may be available form the Academy of Science, Canberra.
The ex member reinlisted on 12 August 1943 he served in Port Moresby with HQ New Guinea Force from 21 August 1943 to 09 October 1943, he discharged in October 1943.
In response, submissions dated 9 June 2000 and 22 September 2000 were put on behalf of the veteran pointing out that he had no discharge medical examination on his return from Cairns, and that he retained his military uniform and pistol issued by the Army. The letter does not deal with the fact that his research was under the continuous direction of the army. The veteran further stated that he was not formally discharged from the Army on his return from New Guinea on 9 October 1943. He said that his discharge and discharge medical examination took place some years later.
D.R. Meehan's letter raises doubt that the veteran served in Cairns. Yet the veteran's claim that he served his first period of service in Cairns was not challenged at the hearing. The veteran's credit was not in issue. The tribunal is satisfied that the veteran gave his evidence frankly and accurately to the best of his recall. He had a clear and concise recall of his time in Cairns. His evidence is supported by the mention in the veteran's Medical History Sheet of the veteran having received medical attention on 19 December 1942 in Cairns (T3, p.11, and see also a reference to Cairns fieldwork at T11, p.12). D.R. Meehan's letter provides insufficient ground to doubt the accuracy of the veteran's unchallenged recall of this aspect of his service. The tribunal has no doubt that the veteran spent a period of his service in Cairns in the company of, amongst others, Major McCullock.
In relation to whether the veteran served one continuous period of service or two distinct periods, the veteran submitted that he should receive the benefit of subparagraph 119(1)(h)(ii) of the Act. That is, he should be excused from evidential defects in his claim because of the special difficulties of proof in the veterans' entitlement system. The respondent stated that this provision can not be used to provide evidence of facts if none exist, and cites Re Sharkey and Repatriation Commission (1988) 15 ALD 782 in support. There is, however, sufficient material before the tribunal for a determination of the nature and details of the veteran's defence service to be made.
It does not follow from the fact that the defence service records fail to record that a period of the veteran's service was in Cairns, that the record of his two enlistments is likely to be inaccurate. The letter from D.R. Meehan tends to support the respondent's contention that the veteran was not engaged in continuous full-time service for the whole period from 29 November 1942 until his discharge on 28 October 1943. I accept the veteran's evidence that the arrangement he had with the Army was that he was liable to be required for active service if called upon at any time whilst continuing his research at the CSIR. The veteran does not recall having a discharge medical at the conclusion of his period in Cairns, nor a further medical examination before his service in New Guinea. However, the Medical History Sheet (T3, pp.8-11) reveals that a medical examination was carried out on 12 August 1943 at the NSW recruiting depot. It seems that the veteran was discharged from the Army at the conclusion of the period he served in Cairns and that he re-enlisted when called to duty again. The veteran's record of service indicates that he was re-appointed to his previous rank of Captain in August 1943 (ST14A, p.64).
The tribunal notes that the "Officer's Record of Service" (ST14A) indicates that on the termination of his duty, on 15 January 1943, the veteran was given approval to retain his personal equipment. This explains why he was able to retain his uniform and pistol. In further support of its contention, the respondent relies on the veteran's evidence that the same conditions applied to the veteran on his return from New Guinea after his transfer to the Reserve of Officers on 28 October 1943. He remained in the Reserve of Officers until after the war ended, on the understanding that he might have been called up at any time for further field experiments depending upon his research discoveries. I accept the veteran's statement that his formal discharge from the Army did not come about until he was removed from the Reserve of Officers in 1946 or 1947.
The issue is whether the special arrangement that the veteran return to civilian life after the completion of his first period of service, until being called upon again, constituted a break in his service. The CSIR, his employer during that time, permitted the veteran to continue the work and research he was doing in relation to malaria. It was akin to the work he was doing prior to his enlistment in the Army. It seems that the nature of the work the veteran did in that time was a matter of agreement between the Army and CSIR, and that the veteran resumed his employer/employee relationship with the CSIR. The CSIR was responsible for his salary and the conditions of his work. As a matter of law, it seems that the CSIR was the responsible employer for the veteran's occupational health and safety, conditions of work and wages in that period. I find, therefore, that the veteran returned to the employ of the CSIR in the period between the two Army tours to Cairns and New Guinea, which tours constituted two separate periods of defence service.
Is the veteran's condition of colonic cancer war-caused?
The veteran joined what is now known as the CSIRO on 2 January 1938 as an entomologist, initially in the area of insect physiology. He became Chief of the Division of Entomology and held this position for 21 years. He is a distinguished scientist. Despite his retirement in 1981, he undertook contract work and consulting in his area of specialty. He is still associated with the CSIRO and performs unpaid work concerning integrated pest management and biological control. The veteran was advised by his oncologist in February 1995 that he was suffering from cancer of the colon. He had a colonectomy. By September 1995 the cancer had metastasised. He had treatment including chemotherapy. He is in poor health. The cancer is terminal and no further treatment is offered to him.
In determining whether the veteran's condition of colonic cancer is war-caused, the tribunal needs to determine the level of the veteran's alcohol consumption during the relevant periods and consider whether his alcohol habits were causally related to his periods of service. The veteran does not bear the onus of proof. The standard of proof for periods of operational service is that of a reasonable hypothesis as set out in subsections 120(1) and 120(3) of the Act. That is, the tribunal must find that the claimed condition was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect the condition with the circumstances of the operational service rendered. The standard of proof for periods of eligible war service is that of reasonable satisfaction as set out in subsection 120(4) of the Act.
In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist for a hypothesis to be considered reasonable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence as a minimum meets one of the factors set out in the SoP for that condition. However, for operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.
The relevant SoPs
In the veteran's case the SoPs in relation to Malignant Neoplasm of the Colon, applying at the time of the decision under review, were instrument No. 23 of 1996 as amended by No. 5 of 1998 which revoked instrument No. 37 of 1995 for operational service, and instrument No 24 of 1996 as amended by No 6 of 1998 for eligible service.
In relation to SoP No. 23 of 1996, the relevant factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colon with the circumstances of the veteran's service is factor 5(c) which requires:
drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon.
In relation to SoP No 24 of 1996, factor 5(c) is again the relevant factor, cast in the same terms, but requiring the consumption of 500 kilograms of alcohol within any 25-year period before the clinical onset of the condition.
Contentions
The veteran contends that he suffered from various stressors in the course of his war service and that as a result he increased his alcohol consumption habit during and because of his war service. He contends that he consumed greater than 250 kilograms of alcohol within a 25-year period prior to the clinical onset of his colonic cancer condition as required by the SoP in respect of operational service. The veteran concedes that he does not satisfy the quantity element of factor 5(c) of the SoP for eligible war service, which requires a consumption of greater than 500 kilograms of alcohol within a 25-year period prior to the clinical onset of his colonic cancer condition.

Accepting that the applicant satisfies the quantity element of factor 5(c) of the SOP relevant for operational service, the respondent contends that the veteran's alcohol consumption was not related to the stressful events experienced during the veteran's operational service and was not otherwise attributable to his service. In addition, the respondent contends that the applicant's continued alcohol consumption after the war was a matter of choice and not due to his service or to alcohol dependence.
I have found that the veteran's service was not continuous between 29 November 1942 and 28 October 1943. The whole period does not, therefore, comprise occupational service for the purpose of the Act. The veteran had two separate periods of service. I accept that the veteran consumed at least 250 kilograms but not more than 500 kilograms of alcohol in the 25 years preceding the onset of his colonic cancer. While factor 5(c) of SoP No 24 of 1996 in relation to the period of the veteran's eligible service in Cairns is not met, factor 5(c) of SoP No 23 of 1996 relating to operational service is. Therefore the relevant period of service is the second period in which the veteran served in New Guinea on operational service.
The tribunal needs to determine the factual matters relevant to causation in relation to the period of the veteran's operational service (Repatriation Commission v Deledio (1998) 49 ALD 193). The veteran concedes that his consumption of alcohol increased during the period of his eligible service in Cairns, but he contends that this period of service "added its measure to the creation of the condition", satisfying the test in Treloarv Australian Telecommunications Commission (1990) 97 ALR 321 at 328. The respondent agrees that the tribunal should be guided by that test. But the respondent contends that the veteran's drinking habits in Cairns were not stress-related, and that while he was in New Guinea he did not regularly consume large quantities of alcohol. It further contends that the veteran's consumption of alcohol after his service did not vary significantly from his consumption prior to his service, and that any stress the veteran suffered in New Guinea was not the cause of any change in his drinking patterns.
The central issue for the tribunal's consideration is whether the veteran's consumption of alcohol is causally related to the agreed period of his operational service. The evidence about the veteran's consumption of alcohol up to and during the period of his service in New Guinea, and what stressors, if any, he suffered during his service is considered below.
The Evidence
The veteran's evidence is that prior to his service he was a very light drinker of alcohol. The veteran started consuming alcohol on a regular basis in 1938 when he commenced employment with the CSIR (T7). His reason for doing so was "peer pressure and first real availability of funds". By the late 1930's or early 1940's the veteran consumed on average 2 or 3 glasses of beer or wine 2 to 3 times a week. Occasionally he consumed spirits. He stated that he consumed more if there was a "keg party", which was common at that time (T7, p.24). In giving his oral evidence the veteran said the he rarely consumed alcohol with enjoyment. His consumption of alcohol occurred only when he was a guest of a friend or colleague at their home. He did not drink at a hotel, on his own or with anyone at home.
The veteran's evidence is that his consumption changed in the middle of 1942, prior to his service, when he spent a social-work evening with Major McCulloch, who was to be his colleague and with whom he was to travel to Cairns. He had been working long hours and accompanied Major McCulloch to the public bar of a hotel. He found it relaxing, and he did this for some three or four days a week when in Major McCulloch's company. Thereafter the veteran drank beer with friends at hotels.
The veteran's first regular daily consumption of alcohol commenced in the period he was in Cairns. He and his colleagues were given rations of beer. Major McCulloch was with him. The practice of drinking beer after a long, stressful and hot day continued. He drank every evening over a six-week period, unless he went to see a movie or to someone's home. The veteran said that he usually drank three or four beers each evening.
The veteran gave evidence of the stressors he suffered during his war service which, he said, "greatly accelerated the change in his drinking habits" (Ms Barrelle's report, 9 February 2000, at page 3, Exhibit A). He said that he was subjected to extreme work pressures while in Cairns. There was pressure on him to find a repellent that would work, as the malaria rate amongst the troops was increasing. The solution was in his grasp, but he had no real information about the toxicity or carcinogenicity of his solutions. He tolerated mosquito bites to aid in his research. He found that the bite from the anopheles mosquito raised very large wheals on his skin, which were sore and irritating to him. The veteran recalled a traumatic time when, he said, the Japanese bombed Cairns. He said that he heard several explosions nearby and then there was silence. He and two of his work colleagues put on steel helmets and prepared to help. He said they were not able to locate where the damage was. The veteran explained that he was unable to obtain any press report of the event because such incidents were generally not reported, in order not to assist the enemy in learning whether any damage was caused. The record of enemy raids on Australia between 19 February 1942 and 15 January 1943 produced by the respondent reveals that a bomb was dropped in the Mossman District (referring to the locality of Cairns) some 100 kilometres north of Cairns on 31 July 1942. This was prior to the veteran's time in Cairns. On the veteran's evidence it seems that the incident to which he referred was not a significant source of stress and did not place his life in danger.
It was during his time in Cairns that the veteran came to look forward to a beer after work. He drank before dinner, with dinner, and had "a couple" more drinks after dinner, unless he went out. The veteran attributed the emergence of this pattern of drinking to the camaraderie, because alcohol served as relaxant after a stressful and hot day and because it alleviated the irritation from the wheals on his arms.
The veteran said that on return to Canberra he consumed alcohol at a much lesser rate and only in company, but that he had a pattern of more regular intake. On Thursday, Friday and Saturday evenings he consumed two to four drinks, on each of these days. He drank earlier in the week only if he went out. There was a limited opportunity to drink, compared to the situation in Cairns. This consumption appears to be the same level as the amount he consumed prior to his enlistment (described at T7).
In relation to his tour in New Guinea, the veteran explained that he flew from Canberra to Townsville in a two-engine Douglas aircraft. As a result of some strange engine noises the pilot decided to land at Cooktown to see if the problem could be addressed. The engineers examined the engine and decided that the malfunction was not serious enough to ground the aircraft and they flew on to Port Moresby. This caused some disquiet to the veteran, as he listened to the occasional engine noise. However, the plane tipped on its side, (as it transpired the plane was dipping its wing as a recognition manoeuvre around the beacon) and the veteran said that he feared "we had had it". When they landed and waited for transport to the village the veteran consumed one to two middies of beer with his lunch and three to five in the evening. This pattern continued for "a couple" of days while waiting for transport to Lalapipi on the coast. The veteran stated that he did not drink to make himself inebriated. For the next six weeks, when the veteran was undertaking fieldwork in the jungle at Lalapipi, access to alcohol was restricted. He had with him a bottle of musket and a bottle of whisky. He shared this with his two colleagues over a six-week period, consuming on average one third of a standard drink per day. He said that he thought a lot about the prospect of drinking "a cold beer". A few stressful incidents occurred that gave the veteran reason to be fearful of being injured or losing his life. He gave a full and frank description of his time in Lalapipi without exaggeration, and his attribution of stress to the various incidents is credible. He suffered stress by reason of illness (Dengue fever), wheals from mosquito bites and work pressures.
On the veteran's return to Port Moresby he drank heavily (Exhibit B, para.20). On his return to Australia another air incident occurred which frightened him. The four-engine flying boat lost one engine and plummeted down some 8,000 to 9,000 feet. This event caused him anxiety. He was aware that the pilot might have to land urgently and it seemed that neither Cairns nor Townsville could accommodate the landing of the 'plane. The 'plane landed safely in Townsville. The veteran said that he drank heavily. He said that he drank half a dozen drinks of beer, the first a schooner and the others middies. He said that as a consequence of this flight he often wakes at night shaking and that this has occurred for several years, and that he has had nightmares about the incident. A few days after landing in Townsville the veteran's party flew to Brisbane. The veteran met, and had a drink with, his fiancée at a hotel. He then proceeded to Melbourne where he was debriefed and he conveyed the results of his research. People bought him drinks. The veteran said that the consumption of alcohol formed part of the debriefing process. This was an exciting time for him, as it was on this occasion that the decision was made for the Australian Army to make use of his research.
The veteran said that once he was back in Canberra he noticed that his drinking had increased over his pre-service drinking patterns to three to four schooners a night (Exhibit B, para.20). He said he might on occasions consume some wine and other alcoholic drinks. This consumption, he said, was much less than the amount he consumed during the drinking sessions he had whilst on service. He maintained that his civilian drinking patterns arose because of the habit he acquired as a result of the stress and pressures he was under, the greater availability of alcohol and the camaraderie during his war service (Exhibit B, para.21). In addition, the veteran felt a great satisfaction that his work had assisted the war effort in the Pacific, implying a reason to celebrate socially with his drinking companions. The veteran stated that after he left the Army his intake of three to four schooners of beer a day decreased over the years as his intake of wine increased. After his exit from the service he reduced his consumption of alcohol to three or four beers a night for two or three nights a week.
The veteran married in 1944 by which time wine was more readily available. He generally shared between a bottle and a bottle and a half of wine in the evening with his wife. He also drank brandy and milk at night during the winter. He drank in this fashion until 1995 when he underwent a colonectomy and was abstinent thereafter for a number of months, before returning to the same drinking pattern. The veteran stated that he now regularly consumes three to four glasses of wine each night, and occasionally beer and spirits.
The medical evidence
Neither Ms Barrelle, clinical and forensic psychologist, nor Associate Professor Dr Mattick, psychologist, identified any particular event that impacted on the veteran as meeting the criteria for Post-Traumatic Stress Disorder (PTSD).
Ms Barrelle, in her report of 9 February 2000 (Exhibit A), accepted Dr Waterhouse's statement that he drank little before the war. The veteran accepts that the few days before his service, when he started to enjoy the convivial intake of alcohol with Major McCulloch, was the commencement of the peer pattern of drinking. He said that it started before his war service "in preparation for an extended period with (Major McCulloch) later in the year". Colleagues bought alternative rounds of drinks for each other. These sessions saw an increase in the amount of alcohol consumed by the veteran at the end of each day.
The stressors the veteran described as occurring during his stay in Cairns were sufficient for Ms Barrelle to conclude that his six weeks there was a "pivotal accelerant period" for his drinking, and that from this time forward his alcohol consumption was significantly greater and more frequent than before.
Ms Barrelle found that the veteran did not abuse alcohol nor become dependent upon it. She concluded, however, that he increased his intake during his war service and continued thereafter to consume more than his pre-service consumption. Ms Barrelle noted that the veteran maintained a level of consumption less than his rate of consumption in Cairns, and that his consumption waxed and waned in response to the availability of alcohol, stresses and social conditions. Ms Barrelle concluded that it was obvious that the veteran's increased consumption of alcohol had a temporal connection with his war service. Her opinion is that the war service, with its stresses and the traumatic incidents described by the veteran, appears to have caused his current pattern of consumption. Ms Barrelle thought the commencement of this level of consumption was a response to the specific war-caused stressors. She placed this in the context not only of pressure in the military environment, but also the availability of alcohol and the culture that allowed consumption of alcohol to routinely facilitate the bonding of military personnel. Ms Barrelle considers there is a link between the veteran's consumption and his war service, though with no psychological cause. She saw the veteran's mechanisms for coping with distressing and traumatic events as effective and sophisticated. No psychological dysfunction resulted from the stress he suffered.
Ms Barrelle thought that the veteran's account of the recurring dreams about the aeroplane incident was descriptive of PTSD, but that he lacked other symptoms to otherwise meet the criteria for the diagnosis of that psychiatric condition. Ms Barrelle concludes that the veteran's war service presented him with the opportunity for drinking more regularly and in larger quantities, and that as the habit continued, the nexus between his ongoing consumption of alcohol and his war service is made out.
The respondent relies on the reports of Associate Professor Mattick, psychologist specialising in behavioural science, dated 14 September 1999 and 29 April 2000 (Exhibit 1). He has had 20 years experience in psychology. Associate Professor Mattick accepted that the veteran was a light social drinker before his war service, and that the increase in his consumption of alcohol, which occurred in Cairns, was not maintained on his return to civilian work. He notes the veteran's variable drinking patterns thereafter and in particular the decrease in his consumption on the return to Canberra in 1943. Associate Professor Mattick took into account the veteran's larger consumption of alcohol for short periods in Port Moresby and Townsville, and the fact that he drank modestly while under the stresses he described in Lalapipi. Associate Professor Mattick saw the next real increase in the veteran's consumption of alcohol as occurring after his marriage in 1944, when he enjoyed convivial drinking of the now more easily available wine with his wife.
Associate Professor Mattick regarded the veteran's decrease in his consumption of alcohol on his return to Canberra as significant and suggested that the veteran had no ongoing war-caused drinking habit. He thought that the veteran's exposure to short-term stress during his second period of war service caused him to resort to self-medication in order to cope. He noted that the veteran drank alcohol until he was "under the influence" on two to three nights during his second period of war service, but that he otherwise consumed alcohol very lightly (one-third of a standard drink per day). The veteran's modest consumption in Lalapipi is evidence of the control he had over his drinking habits. He was able to share out the rations with others. Associate Professor Mattick regarded the fact that the veteran first enjoyed a beer when drinking with Major McCullock before his period of war service as demonstrating that the veteran then had the ability to consume the rate of alcohol that he did after his service. Associate Professor Mattick therefore concludes that there is no causal connection between the veteran's post-service drinking habits and his defence service, and that the veteran chooses to consume the present level of alcohol he consumes because he enjoys it.
The tribunal prefers the opinion of Associate Professor Mattick to that of Ms Barrelle. Associate Professor Mattick's assessment of the veteran's drinking history accords more closely with the veteran's evidence than the history taken into account by Ms Barrelle. The tribunal notes that there need not be any psychological basis, such as alcohol abuse or dependence for factor 5(c) under the relevant SoP to be met. However, there must be a causal relationship between the veteran's operational service and his ongoing level of alcohol consumption. An examination of the facts and circumstances of the veteran's defence service as described by him fails to reveal a causal connection between the operational service and the veteran's ongoing level of alcohol consumption. No established pattern of drinking occurred during his periods of service. The drinking habits that emerged while he was in Cairns were not continued in the period that the veteran was in New Guinea, or resumed on his return from New Guinea. Different habits emerged after his marriage in 1944.
Conclusions
As the tribunal has determined that the veteran has two periods of service, one of eligible war service and the other of operational service, the relevant service is the period of operational service in New Guinea. It is significant that the period in which the veteran consistently increased his alcohol intake was during the period of his eligible service in Cairns. It seems that his drinking pattern in Cairns was a response to the working stresses and social circumstances in which he found himself. The tribunal takes this into account when considering whether the period of operational service contributed to the veteran consuming alcohol at the rate that he has over the 25 year period prior to the onset of the malignant neoplasm of the colon.
It is difficult to conclude that the veteran had an entrenched drinking pattern prior to his service in New Guinea. The availability of alcohol was limited when he was in Lalapipi. What was available the veteran shared with others despite the stresses he was suffering. His response to other stresses at the time was a temporary intake of larger quantities of alcohol when it was available. On the veteran's return to civilian life he reduced his alcohol consumption to something less than what he drank in the period he was in Cairns. The level of his consumption was dictated by the amount he found pleasurable when drinking with friends. On being married in 1944 the quantity he drank increased and the nature of his intake changed, again to accord with the pleasure he derived from drinking alcohol in his newly found social circumstances.
After hearing the evidence and taking into account the medical opinions the tribunal is satisfied beyond a reasonable doubt that there is no connection between the veteran's consumption of alcohol between 1944 and the onset of his colonic cancer, and his operational service. There is therefore no sufficient ground for determining that the veteran's malignant neoplasm of the colon with metastases was war-caused.

The tribunal affirms the reviewable decision.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         James Enderbury               .....................................................................................
  Associate
Date of Hearing  8 May 2000
Date of Decision  24 November 2000
Counsel for the Applicant        Mr Paul Crabb
Solicitor for the Applicant         Snedden, Hall & Gallop
Counsel for the Respondent    Ms Susie Breuer
Solicitor for the Respondent    Department of Veterans' Affairs, Advocacy