Robinson-Watterston and Repatriation Commission [2000] AATA 699 (15 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 699

) No V1999/0121 - T2000/0037

VETERANS' APPEALS DIVISION )

Re JOHN ROBINSON-WATTERSTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 15 August 2000

Place Hobart

Decision The decision under review is affirmed.

...................................

Senior Member

VETERANS' AFFAIRS: Operational service in Ubon; whether a reasonable hypothesis connecting service with bipolar disorder, ischaemic heart disease, hypertension, diabetes, lumbar spondylosis; decision affirmed.

Veterans' Entitlements Act 1986

Repatriation Commission v Cooke 1998 AAR 400

Full Federal Court in Repatriation Commission v Deledio 1998 49 ALD 193 at 206

Repatriation Commission v McKenna 1998 28 AAR7 and 1999 86 FCR 144

Repatriation Commission v Gosewinkel 1999 FLA 1273

Repatriation Commission v Deledio (Supra) and 1997 47 ALR 261

Connors v Repatriation Commission 2000 FCA 783

REASONS FOR DECISION

15 August 2000 Mr J. Handley, Senior Member

1. On 5 August 1999 I directed that this application be remitted to the respondent (after two days of hearing) for reconsideration.

2. Some further medical examinations were arranged by the respondent and on 5 January 2000 a determination was made affirming the decision under review.

3. Accordingly, these applications were re-listed for hearing. In the interim, the applicant had returned to Tasmania, where he now resides. Accordingly the application was heard in Hobart on 10 July 2000.

4. The applicant confirmed that he will not proceed to seek a review of the condition of sleep apnoea nor would he pursue the condition of osteoarthrosis of his feet. The decision of the Veterans' Review Board, under review in these proceedings will, in so far as it related to the conditions of sleep apnoea and osteoarthrosis of his feet be affirmed. The review before this Tribunal continued only with respect to the conditions of bipolar disorder, hypertension, ischaemic heart disease, diabetes and lumbar spondylosis.

5. These proceedings originated by an application made by the applicant upon the respondent on 15 December 1997. By reason of statements of principles having been introduced to the Veterans' Review Regime effective from 1 April 1994 the applicant is obliged to satisfy one or more factors under an applicable statement of principle before it can be said that a reasonable hypothesis has been raised connecting the injury or illness or disease with service. Relevantly the applicant's service, attracting the beneficial standard of proof, was between 14 July 1967 and 18 December 1967 when he served with the No. 79 Squadron of the RAAF at Ubon in Thailand. This is a period of "operational service" for the purposes of the Veterans' Entitlements Act 1986.

6. The applicable statements of principles for the above injuries remaining in contest are as follows:

Bipolar Disorder Instrument No. 128 of 1996

Ischaemic Heart Disease Instrument No. 140 of 1996

amended by Instrument No. 77 of 1997

Hypertension Instrument No. 83 of 1995

Diabetes Instrument No. 47 of 1996

amended by Instrument No. 187 of 1996

Lumbar Spondylosis Instrument No. 165 of 1996

7. During the course of his evidence at the Tribunal on 10 July 2000 the applicant reminded me that he was unhappy with the failure on the part of various Federal Governments to recognise service of persons at Ubon as being "qualifying service" within the meaning of the Veterans' Entitlements Act. Coincidentally I learnt during the Hearing that the Federal Minister for Veterans' Affairs released a press statement on 9 May 2000 (following the Federal Budget) granting eligibility for certain veterans including "personnel who served at RAAF Base Ubon in Thailand between 26 June 1965 and 31 August 1968". The press release indicated that veterans may apply for service pension from 1 January 2001. It would appear, therefore, that the applicant will be entitled to a service pension from 1 January 2001. I brought this to the attention of the applicant because it occurred to me that his unhappiness with the Repatriation Commission rejecting his conditions as related to service was in part an attempt to have his service recognised and accepted. It appeared that the applicant was insulted by the failure on the part of previous Governments to determine that those persons who served at Ubon had undertaken "qualifying service".

8. Mr Robinson-Watterston appeared unrepresented in Hobart. The respondent was represented by Mr Rudge. Evidence was heard from Mr Robert Smythe who previously served with Mr Robinson-Watterston in Ubon. Evidence was also heard from Dr Ian Sale a consultant psychiatrist in Hobart.

9. The evidence of these witnesses and the Mr Robinson-Watterston was principally with respect to the condition of bipolar disorder.

10. Whilst Mr Robinson-Watterston sought a review of the remaining decisions he called no evidence but asked me to rely on a report completed by Dr Derek Ashby who presently treats him. That report is dated 20 June 2000 and was received at the Tribunal on 27 June 2000. It was sought at the request of the respondent. Dr Ashby has not referred at all to statements of principle. No opinion is expressed by Dr Ashby with respect to whether any of the conditions are related to service. I indicated to Mr Robinson-Watterston that I was unhappy that in the interim between the previous decision and the resumption in Hobart that no evidence had been made available by him nor apparently sought by him despite many indications being given to him by the previous decision and subsequently in Directions Hearings that the Tribunal would assist him in approaching doctors to obtain evidence.

11. At the conclusion of the proceedings in Hobart, no evidence had been heard with respect to the conditions of ischaemic heart disease (1HD) and hypertension, diabetes and lumbar spondylosis. Mr Rudge suggested that an inter-relationship may exist between 1HD, diabetes and hypertension by reason of material within the T documents concerning the applicant's history of obesity, smoking and alcohol consumption. Mr Rudge suggested that he would review the documents and make written submissions.

12. Mr Robinson-Watterston was insistent that I deliver oral reason for decision. I was not prepared to do this because I wanted the opportunity to reflect on the evidence heard, to again read the documented evidence and attempt to explain by written reasons my decision. I asked Mr Rudge to make his submissions within 14 days. A copy of his submissions (subsequently filed) have been sent to the applicant with an invitation to respond and file submissions of his own. The applicant has written a number of letters (since receiving the respondent's submissions), the contents of which have been taken into account.

BIPOLAR AFFECTIVE DISORDER

13. The applicable statement of principle is Instrument No. 128 of 1996. The factors which must exist as a minimum before a reasonable hypothesis can be raised connecting bipolar disorder with the circumstances of the applicant's service are found at paragraph 5 as follows:

"the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting bipolar disorder or death from bipolar disorder with the circumstances of a person's relevant services are:

(a) experiencing at least one severe psychosocial stressor within the six months immediately before the clinical onset of bipolar disorder; or

(b) being within 90 days postpartum at the time of the clinical onset of bipolar disorder; or

(c) experiencing at least one severe psychosocial stressor within the six months immediately before the clinical worsening of bipolar disorder; or

(d) being within 90 days postpartum at the time of the clinical worsening of bipolar disorder; or

(e) suffering from substance abuse involving alcohol or cocaine at the time of the clinical worsening of bipolar disorder; or

(f) using a specified drug as identified in the specified list of drugs at the time of the clinical worsening of bipolar disorder; or

(g) inability to obtain appropriate clinical management for bipolar disorder."

14. There was no material raised either from the documents filed or arising out of the evidence which would support the factor of substance abuse involving alcohol or cocaine. Additionally, the definition of "substance abuse involving alcohol or cocaine" found at paragraph 7 of the instrument cannot be satisfied. It reads:

""Substance abuse involving alcohol or cocaine" means a maladaptive pattern of use of alcohol or cocaine, as derived from DSM-IV, attracting 1CS code 303 or 304.2, that is indicated by either;

(a) continued use of alcohol or cocaine despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

(b) recurrent use of alcohol or cocaine when use is physically hazardous (for example driving while intoxicated);"

15. There was no material raised from the documents or which arose out of the evidence which would support the factor of the applicant using a specified drug from the list recorded under the definition of "using a specified drug" at paragraph 7 of the instrument. There was no material arising from the documents or from the evidence to support the factor of the applicant having an inability to obtain appropriate clinical management for bipolar disorder. The applicant is certainly unable to satisfy factors (b) and (d) as recorded above.

16. The remaining factors mainly factor 5(a) and 5(c) remain for consideration. The expression "severe psycho-social stressor" is defined at paragraph 7 as meaning:

"an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems."

17. These factors require identification of whether there was "at least one severe psychological stressor within the six months" immediately before the clinical onset or clinical worsening of bipolar disorder.

ROBERT SMYTHE

18. Mr Smythe was a member of the RAAF between 1964 and 1986. He was promoted to the rank of Wing Commander at his retirement. He was stationed at Ubon between April 1967 and April 1968. He was, therefore, present at Ubon throughout the entire service of the applicant at Ubon. Mr Smythe had been given a copy of transcript by the respondent of the earlier proceedings and was asked to comment. He completed 18 typed paragraphs which were received into evidence. This document was exchanged between the parties prior to the hearing.

19. In summary he said that the project "Cane Drop" was classified as a secret project and he was the project officer in the No. 2 Stores depot, between 1966 and 1967. When pressed on this issue he said that "Cane Drop" had no connection with Ubon. He said that his first involvement with the project was in stores and depots in Australia. He said the equipment which was despatched from Australia was sent directly to Vietnam. It did not pass through Ubon. Mr Smythe said that to his knowledge the applicant had no involvement in "Cane Drop" in Ubon. So far as he could recall, the applicant would have only had contact with the Cane Drop project by his previous posting to the Amberley base in Australia, which also despatched equipment to Vietnam.

20. When questioned as to whether he could offer any explanation as to why Professor Grey, a military historian, had reported to the respondent that there were no records in the military archives of project "Cane Drop" Mr Smythe postulated that "Cane Drop" was part of a bigger project and would not be recorded in its own name in the archives.

21. Mr Smythe said that nuclear weaponry was never mentioned or discussed amongst Australian or other personnel at Ubon and if it had have been he would have been aware of it. He said that Canberra aircraft, which were despatched to Ubon, did not ever deliver nuclear weapons or supplies. The steel hangars (which the applicant described as housing Phantom jets which were armed for nuclear strike) were used only for maintenance. He said that Ubon was never considered a nuclear target and the steel hangars never housed Phantom or other planes which had a nuclear capability.

22. Mr Smythe said that the applicant was not responsible for any flights into or out of Ubon and whilst the applicant was a senior officer, Mr Smythe had no recollection of the applicant ever being in charge of base combatant personnel.

23. Mr Smythe agreed with the earlier evidence of Mr Hombsch that gelignite was never thrown onto the officers' huts. However, officers and other personnel were exposed to "thunder flashes" as part of normal military training programmes. He could not recall the applicant ever being frightened by thunder flashes but did acknowledge that first exposure to a thunder flash could be a frightening experience. He regarded Mr Hombsch as being a mature officer and responsible.

24. With respect to an assertion that there were nine Phantom bombers lost in one exercise, Mr Smythe said that this would not have occurred. Because there was a squadron of eighteen only, the loss of nine would have represented a loss of 50% of the fleet. He said information concerning losses was usually obtained from Communist spotters who were known to be positioned in neighbouring jungle. When captured, these persons apparently recorded the identification numbers of planes, which took off each day and reconciled their records against the planes that returned each day. Apparently the bookkeeping of the spotters was such that if planes did not return they were regarded by the spotters as having been shot down or destroyed. The spotters apparently did not take account of planes, which were sent elsewhere for maintenance. Mr Smythe was aware that an Australian Sabre Aircraft was lost at Ubon but a Court of Inquiry found it had crashed due to pilot error. Mr Smythe had no recollection of the Ubon Camp being showered with grenades from a cluster bomb but did acknowledge that there was an occasion where an F4 Aircraft crashed causing a major explosion and also causing damage to neighbouring buildings. This crash occurred before the applicant was sent to Ubon.

25. Mr Smythe said that the Ubon base was very busy. He said that eight Phantom aircraft took off every 15 minutes, 24 hours per day, seven days per week. He said that the noise from the base was excessive. He said that many officers took a great deal of time to get to sleep but eventually became used to the noise. He was not aware of any decibel readings ever having been taken. He regarded the proximity of huts and housing to the runway to be unusual. He said that the earlier plane crash and the subsequent lodging of a bomb fragment in the Officers' Mess reminded "all that nowhere on the base was completely safe".

26. Mr Smythe doubted that a helicopter would have ever hovered above the applicant or anyone else for five minutes with a spotlight. He said that such an exercise would have exposed the helicopter to the potential of enemy fire because it would have been regarded as a target.

27. Mr Smythe had no recollection of the applicant being distressed at Ubon. He recalled Mr Robinson-Watterston as being an intense person who had an "unusual style of management". He recalled that the applicant was supported by senior officers in reports subsequent to his service at Ubon.

28. In cross examination Mr Smythe agreed that it was possible that Flight Officer McGrath who was the pilot of the Sabre jet which crashed at Ubon could have been subjected to enemy fire which may not have been detected when the plane was salvaged.

IAN SALE

29. Dr Sale has been a Consultant Psychiatrist in Hobart since 1977. He examined the applicant on 2 May 2000 and provided a report of the same date. Principally, he was asked to examine the applicant as a result of an application the applicant made earlier this year upon the respondent for acceptance of the condition of post-traumatic stress disorder. Dr Sale found no evidence of post-traumatic stress disorder but diagnosed the applicant as having "bipolar affective disorder with deteriorating course, alcohol abuse and personality change as a consequence of these two conditions".

30. In evidence he said that the term "bipolar affective disorder" has only been used for about ten years. He said that symptoms giving rise to the condition were otherwise described by doctors as either manic depression or manic disorder or manic psychosis.

31. In order to identify the date of the clinical onset of bipolar disorder, Dr Sale had recourse to the medical notes of the Royal Park Hospital found at pages 386 and 406 of the T Documents. He said it was not possible to diagnose bipolar disorder in 1980 (when the applicant was first observed to suffer a manic episode) because the term bipolar disorder was not then used. Nonetheless if those symptoms had occurred after 1990 when the term bipolar disorder had been used, he would have probably made that diagnosis. Dr Sale observed (page 406) that Dr Marinovitch diagnosed the applicant as having a manic-depressive illness in 1975. Dr Sale said this was probably the earliest reference in the clinical notes of a condition which would presently be known as bipolar disorder.

32. Dr Sale noted that on 21 December 1982 the Department of Defence accepted (in a compensation claim) that the applicant suffered a reactive anxiety which had ceased at 31 December 1971. He said reactive anxiety does not amount to a manic depressive state or the equivalent presently of bipolar disorder. He said reactive anxiety is a reaction to circumstances usually manifested by headache or insomnia. He said it is commonly experienced by a high proportion of the population and usually settles. Bipolar disorder he said was a far more serious illness. He described it as being influenced by biochemical and genetic factors. In his experience there were different histories and often there is no relationship to a persons environmental circumstances.

33. Dr Sale was taken to a number of statutory declarations completed by friends and associates of the applicants found at page 245/248 of the T Documents. These declarations were completed in 1983 but referred to observations of the applicant in the early 1970s. Dr Sale was of the opinion that the symptoms observed of the applicant by other persons may be the manifestation of early bipolar illness or it could be the reaction of the applicant to his circumstances at the time. He said it was not possible now to determine whether it was bipolar disorder that the applicant then suffered from.

34. When Dr Sale was taken to pages 107/109 of the T Documents which concerned the applicant's application for resignation from the permanent airforce at August 1970, he observed that the comments made by the applicant and the basis for the request for release from the Air Force were coherent and logical and had he been bipolar then he would have "expected it to be evident in the document".

35. Dr Sale was also taken to the applicant's first application for resignation from the Air Force in July 1968 (page 88 of T Documents). Dr Sale was of the opinion that the contents of the document and the observations of the applicant by others did not suggest to him that the applicant then had a psychiatric illness or any basis for incapacity by reason of a psychiatric illness.

36. The applicant asked Dr Sale in cross-examination to describe the symptoms typically experienced by a person who was suffering from manic depression. He said that that person would be expected to suffer from sustained periods of mood which was either pathologically high or pathologically low and out of all proportion to contemporary circumstances.

37. At the conclusion of the evidence of Dr Sale I asked the applicant whether he could recall why he had recorded the year 1967 against a question "When did you first become aware of the illness" (manic depression) as appeared in an application for veterans pension completed on 25 November 1994. The Applicant said that he recorded that year because he was discharged from Ubon in late 1967 and he subsequently travelled to Hong Kong where he was bedridden and depressed for ten days. He associated his invalidity in Hong Kong with manic depression. He said that it was in 1967 that manic depression/bipolar disorder became evident.

conclusion - bipolar disorder

38. Despite the condition of bipolar disorder being previously described by the medical profession as manic depression or manic disorder or manic psychosis, I would regard the terms - for the purposes of this application as being synonymous. On the balance of probabilities, I am satisfied this is the appropriate diagnosis and I am satisfied the applicant now suffers from it. I am, however, not satisfied that the applicant suffered from it before 1975 (refer Repatriation Commission v Cooke 1998 AAR 400).

39. As referred to earlier the only applicable factors under Instrument 128 of 1996 are factors 5(a) and (c). The Full Federal Court in Repatriation Commission v Deledio 1998 49 ALD 193 at 206 summarised the course that a Tribunal is to take with respect to the incapacity of a person from illness, injury or disease where the application was made after 1 April 1984. These stages are recorded as follows:

"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 as follows:

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 state. 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 s196B(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 an 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 ss196B(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 s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for 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."

40. It was the case of the applicant that his service in Ubon gave rise to the condition of bipolar disorder. I am satisfied that a number of the incidents and events alleged by the applicant at Ubon either did not occur or were exaggerations. I am not satisfied, having heard the evidence of Mr Hombsch and Mr Smythe, that the applicant was exposed to gelignite thrown onto his roof nor to the risk of enemy fire as apparently evident by guns being discharged at the perimeter of the base as was the evidence of Mr Robinson-Watterston. As a fact I find that these events did not occur. As a fact I am also satisfied that the Ubon base was not considered to be a nuclear threat nor were there any activities undertaken at Ubon which would precipitate a nuclear strike elsewhere.

41. Nonetheless, I am satisfied that there were a number of incidents within the applicant's service at Ubon which would cause upset and distress. I acknowledge that the accommodation was positioned close to a runway which was excessively used and which would have exposed the applicant and others to considerable noise. I note also by the apparent crash landing of an aircraft causing considerable damage on base that the applicant and others would have been continually reminded of the risk of injury and death.

42. In making these findings I am however not satisfied that that there was any event or circumstance at Ubon that would amount to a "severe psycho social stressor" as defined at paragraph 7 of Instrument No 128 of 1996.

43. Whilst the applicant says that the first onset of bipolar disorder was in 1967 when he collapsed in Hong Kong, I can find nothing in the material which would point to that conclusion. The applicant may have then been exhausted and/or he may have been depressed. But there was nothing about his behaviour then, as he described to me, that would fit within the behaviour typically experienced by persons who were manically depressed as described by Dr Sale, being persons who "have sustained periods of mood which are either pathologically high or pathologically low and out of proportion to contemporary circumstances" (refer para 36). I note that before the applicant left Hong Kong to return to Australia he apparently was able to negotiate a trip to Victoria Harbour and upon return to Australia he continued to be enlisted, he obtained promotion, he was considered for a Churchill Fellowship, he resigned from the Air Force but re-enlisted a short time later. It was not until 1975, where on the evidence of Dr Sale, the first evidence could be found of the clinical onset of bipolar disorder.

44. Dr Sale diagnosed bipolar disorder, consequent in part on alcohol abuse. There was evidence of having alcohol consumption in Ubon but a hospital note at T5 p21 suggests the applicant ceased drinking. In recent reports, it appears the applicant has resumed a drinking habit. Factor 5(e) would suggest that substance abuse involving alcohol would only be relevant sometime after the diagnosis - if at all - of the manic depressive illness observed by Dr Marinovitch in 1975. This is because, at that date, there was a clinical onset of a condition now understood by Dr Sale as bipolar disorder. Any clinical worsening of bipolar disorder must be after clinical onset. There is nothing to permit a hypothesis of substance abuse involving alcohol after 1975 being raised and connected with (relevant) service which concluded in 1967.

45. Therefore, applying the stages in Deledio as referred to above I am not satisfied that the material points to a hypothesis connecting bipolar disorder with service.

46. In the alternative, if such a hypothesis connecting bipolar disorder and service could be raised it would not (for the purposes of paragraph 3 of the summarised procedure found at page 206 of Deledio) fit within the template to be found within Instrument No. 128 of 1996 namely "experiencing at least one severe psycho social stressor within the six months immediately before the clinical onset of bipolar disorder".

47. Having regard to the above conclusions and the relevant dates there is no material which would permit the applicant's circumstances to fit within the template of factor 5(a) and (c) namely suffering a severe psycho social stressor within six months before the clinical onset of bipolar disorder. As referred to above I am satisfied and find as a fact (having regard to the evidence of Dr Sale) that the earliest evidence of symptoms and circumstances which would give rise to a diagnosis of bipolar disorder was in 1975 when the applicant was being treated by Dr Marinovitch. This was almost eight years after the applicant completed his service in Ubon. All the elements giving rise to a hypothesis must be established (refer Repatriation Commission v McKenna 1998 28 AAR7 and 1999 86 FCR 144; Repatriation Commission v Gosewinkel 1999 FLA 1273; Repatriation Commission v Deledio (Supra) and 1997 47 ALR 261; Connors v Repatriation Commission 2000 FCA 783). I am, therefore, satisfied that because the applicant's hypothesis does not fit within the template of factors 5(a) or (c) the hypothesis must be deemed to be not reasonable and this part of the application will fail.

hypertension

48. Factors 1(a) and (v) of Instrument No. 83 of 1995 respectively refer to persistent obesity before and continuing at least until the accurate determination or clinical worsening of hypertension. "Hypertension" is defined at para 4 as the "usual blood pressure" where the systolic reading is equal to or greater than 140 mm hg and/or where the diastolic reading is equal to or greater than 90 mm hg or where treatment for hypertension is being administered.

49. There are records of the applicant having a blood pressure reading of 140/80 at July 1963 (T4) and 31 August 1965. That is, he was hypertensive before his period of operational service. On 12 August 1968 his blood pressure was 150/90 (T4) as it was also on 30 September 1970 (T4). He had his blood pressure recorded at the Alfred Hospital in 1982 at 245/165 (T5). Whether this amounts to clinical worsening will depend on whether there is an association with hypertension associated with service. As referred above, he was hypertensive before his Ubon service.

50. Any weight gain giving rise to obesity appears to have occurred well after operational service and I cannot locate any material to connect it to service. The applicant's weight was stable during service.

51. Factor 1(b) and (w) refers to psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination or clinical worsening of hypertension. As referred to above, the applicant was hypertensive prior to Ubon and ceased drinking alcohol in 1970 (p575). If the Blood pressure reading in 1982 amounts to clinical worsening, it was not because of the daily consumption of alcohol.

52. Consumption of salt-factor 1(c) may be relevant but there is no material pointing to it at all or in the quantity referred.

53. Factor 1(x), if relevant, would seem to have no relevance in the absence of any material pointing to an inability to obtain appropriate clinical management (for hypertension).

54. "Obesity" has no Statement of Principles of its own yet the RMA provided a "Statement" on 16 August 1996. The relevance and authority of this document is unclear. Yet it does have as a factor "undergoing therapy with a drug ..... ". The relevant listed drug is Lithium. If this drug did contribute to the eventual obesity (as defined) it would permit a hypothesis of service Õ injury Õ drug Õ obesity Õ hypertension but only if the "injury" (bipolar disorder for which this drug was prescribed) was connected with service. As recorded above, I am satisfied, it is not.

diabetes

55. The applicant suffers type 2 diabetes. It was diagnosed in 1994 (refer report of Dr Ashby 20 June 2000). The relevant factors under Instrument 49 of 1996 appear to be obesity (factor 5(b)) and smoking (factor 5(c)).

56. The applicant cannot connect obesity with diabetes for the reasons given earlier (concerning the absence of a connection between service and obesity). Any clinical worsening of diabetes (factor 5(v)) appears irrelevant in the absence of material pertaining to a worsening. Dr Ashby reported the diabetes is reasonably well controlled.

57. The applicant recorded in a smoking questionnaire dated August 1997 that he ceased smoking in about 1967. A hospital record at T5 p210 records a history from the applicant in 1982 of having stopped smoking. The date of cessation is not recorded. It would not appear the applicant has smoked the quantities required or for the duration required by either factor 1(c) or 1(b) to satisfy this Statement of Principle.

ischaemic heart disease

58. The relevant Statement of Principle is 140 of 1996. The applicable factors appear to be hypertension (1(a)) or diabetes (1(b)) or obesity (1(c)) or smoking (1(e)) or inability to undertake moderate or vigorous physical activity for five years before the clinical onset (1(f)).

59. Dr Ashby reported the clinical onset of ischaemic heart disease as 1992. Hypertension, diabetes and obesity cannot be connected, because of the earlier reasons. Additionally, it would appear that the clinical onset of ischaemic heart disease was before the clinical onset of diabetes.

60. The factor concerning smoking requires the applicant to have smoked within three years of the clinical onset of ischaemic heart disease, or, if smoking has ceased, the clinical onset to have existed within 15 years of cessation. If the applicant's smoking questionnaire (refer earlier) is accurate, he ceased smoking in 1967. He cannot satisfy this factor.

61. There is no material which points to an inability to undertake moderate or vigorous physical activity for five years before the clinical onset of ischaemic heart disease.

lumbar spondylosis

62. The appropriate statement of principles is Instrument 165 of 1996. The only reference to back injury or pain is the (non specific) report of Dr Ashby and references to back pain at T4 pages 20 and 32. At least one of these episodes occurred in April 1967, before the applicant served in Ubon.

63. I can find no material which points to any of the factors being satisfied.

conclusion

64. For all the reasons given above the decision under review is affirmed.

I certify that the sixty four (64) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Linda Nemeth ............................................

Secretary

Date of Hearing 10 July 2000

Date of Decision

Counsel for the Applicant Unrepresented

Solicitor for the Applicant

Counsel for the Respondent Mr Rudge

Solicitor for the Respondent