Jenner and Repatriation Commission [2011] AATA 179 (21 March 2011)

Last Updated: 21 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 179

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3984

VETERANS' APPEALS DIVISION		)
	Re		JOHN JENNER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr P Wulf, Member

Date 21 March 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...............[Sgd]...............................
Member

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlement – disability pension – no war related service – claim for Special Rate Pension – anxiety disorder with panic attack – alcohol abuse- marriage break-up – decision under review affirmed

Veterans Entitlement Act 1986 (Cth) ss 70, 120

Administrative Appeals Tribunal Act 1974 (Cth) s 37

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) FCR 307

Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690

REASONS FOR DECISION

21 March 2011

Mr P Wulf, Member

1. The applicant, Mr John Joseph Jenner appeals against both a decision of the Delegate for the Repatriation Commission dated 10 August 2007[1] and an appeal to the Veterans’ Review Board (“VRB”) dated 29 July 2009.[2] The original pension claim was lodged on 9 February 2007.[3] The appeal relates to the applicant’s service in the Defence Force between 10 June 1974 and 9 June 1980 (“eligible period”).
2. The Delegate’s decision was that the alcohol dependence and panic disorder was not defence caused and that the applicant had a continued disability of 40% of the General Rate for ischaemic heart disease, bilateral sensorineural hearing loss and tinnitus and carotid arterial disease.
3. The VRB varied the original decision by amending the diagnosis of panic disorder with agoraphobia to anxiety disorder with panic attacks and depressive disorder. However, the VRB affirmed the decision with respect to the 40% continued disability. On 25 August 2009, the applicant appealed to this Tribunal for review.[4]
4. This Tribunal affirms the decision of the VRB for the reasons contained within.

ISSUES

5. The Tribunal must determine whether the applicant suffered from anxiety disorder and panic attacks, depressive disorder and alcohol abuse that were defence-caused consistent with s 70 of the Act.

LEGISLATIVE SCHEME

6. Section 70 of the Act provides as follows:

70 Eligibility for pension
(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
(2) Where:
(a) a member of the Forces or a member of a Peacekeeping Force has died;
(b) the death of the member was not defence-caused; and
(c) the member was, immediately before the member’s death:
(i) a member to whom subsection 22(4) or section 23, 24 or 25 applied by virtue of section 73; or
(ii) a member to whom section 22 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the member.
(3) Where a pension in respect of the incapacity of a member of the Forces or of a member of a Peacekeeping Force from defence-caused injury or defence-caused disease, or both, is granted, after the death of the member, as from a date before the death of the member, subsection (2) applies as if the member had been in receipt of that pension immediately before the member died.
(4) For the purposes of this Act, the death of a member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if the death, injury or disease, as the case may be, resulted from an occurrence that happened while the member was rendering peacekeeping service.
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
but not otherwise.
(5A) If this Part applies to a member of the Forces solely because the member has rendered hazardous service as specified in section 69A, the death of the member is taken to be defence-caused, an injury suffered by such a member is taken to be a defence-caused injury or a disease contracted by such a member is taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, the hazardous service of the member; or
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any hazardous service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d) the injury or disease from which the member died or is incapacitated:
(i) was suffered or contracted during any hazardous service of the member but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the hazardous service of the member but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, the hazardous service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
but not otherwise.
(5B) If this Part applies to a member of the Forces solely because the member has rendered hazardous service as specified in section 69A, subsections (6) and (7) apply to the person as if references in those subsections to defence service or peacekeeping service, as the case may be were references to hazardous service.
(6) Where, in the opinion of the Commission, the death of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a) the death of the member shall be deemed to have resulted from that defence service or peacekeeping service, as the case may be; and
(b) the death of the member shall be deemed to be defence-caused, for the purposes of this Act.
(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a) if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
(8) Neither paragraph (5)(b) nor (5A)(b) applies:
(a) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey from the member’s place of duty in a case where the member had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the member’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the member’s duty; or
(ii) in the circumstances of the particular case, the nature of the risk of sustaining injury, or contracting disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c) to an accident that occurred while the member of the Forces or member of a Peacekeeping Force was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the member’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed and the extent of that risk was not substantially increased, by reason of the interruption.
(9) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
(a) in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in subsection (4) or in paragraph (5)(a), (b) or (c) or in paragraph (5A)(a), (b) or (c)—if the death, or the injury or disease, as the case may be:
(i) resulted from the member’s serious default or wilful act; or
(ii) arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or
(b) in the case of an injury suffered, or disease contracted, by the member to which paragraph (5)(d) or (5A)(d) applies:
(i) if the aggravation of the injury or disease:
(A) resulted from the member’s serious default or wilful act; or
(B) rose from a serious breach of discipline by the member; or
(ii) Unless the member has rendered hazardous service or the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer.
(9A) The Commonwealth is not liable under this section in respect of:
(a) the death; or
(b) the incapacity from injury or disease;
of a member of the Forces, or a member of a Peacekeeping Force, if the death, injury or disease is related to the relevant service of the member only because:
(a) in the case of a member who had not used tobacco products before 1 January 1998—the member used tobacco products after 31 December 1997; or
(b) in the case of a member who had used tobacco products before 1 January 1998—the member increased his or her use of tobacco products after 31 December 1997.
(10) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease, if the death or incapacity resulted from the serious default or wilful act of the member that happened after the member ceased, or last ceased, to render defence service or peacekeeping service.
(10A) The Commonwealth is not liable to pay a pension to a dependant of a member of the Forces, or of a member of a Peacekeeping Force, being a child of the member, under subsection (1) or (2) if the dependant has attained the age of 16 years and payments, by way of a living allowance, are being made in respect of the child:
(a) by way of youth allowance; or
(b) under the scheme known as the Assistance for Isolated Children Scheme;
(c) under the scheme known as the Aboriginal Secondary Assistance Scheme or the scheme known as the Aboriginal Study Assistance Scheme;
(d) under the scheme known as the Post-Graduate Awards Scheme; or
(e) under the scheme known as the Veterans’ Children Education Scheme.
(10AB) The Commonwealth is liable to pay a pension to a reinstated pensioner.
(11) Where a dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a reinstated pensioner or a child of the member) re-marries, marries or enters into a de facto relationship after the death of the member:
(a) the Commonwealth is not liable to pay a pension to the dependant under this section unless the decision by the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, to grant the pension:
(i) was made before the commencement of this Act; or
(ii) was or is made after the commencement of this Act upon consideration or re-consideration of a claim for that pension that was duly made (whether before or after the commencement of this Act) before the re-marriage, marriage or entry into the de facto relationship occurred; and
(b) a decision granting a pension to the dependant under this section made by the Commission, the Board or the Administrative Appeals Tribunal after that re-marriage, marriage or entry into the de facto relationship occurred (including a decision granting such a pension as from a date before that re-marriage, marriage or entry into the de facto relationship occurred) is void and of no effect unless the decision was made upon consideration or re-consideration of a claim for that pension made as described in subparagraph (a)(ii).
(11A) If:
(a) a male dependant of a deceased member of the Forces or of a deceased member of a Peacekeeping Force (not being a child of the member) has re-married or married after the death of the member; and
(b) the re-marriage or marriage occurred before 22 January 1991;
the Commonwealth is not liable to pay a pension to that dependant under this section.
(12) Where a person is in receipt of, or is eligible to receive, a pension under this Part as the widow or widower of a deceased member of the Forces or member of a Peacekeeping Force, the Commonwealth is not liable to pay another pension to the person under this Part as the widow or widower of another deceased member of the Forces or member of a Peacekeeping Force or under Part II as the widow or widower of a deceased veteran.
(13) Where a person who is in receipt of, or is eligible to receive, a pension under this Part as the child of a deceased person, being a member of the Forces or a member of a Peacekeeping Force, would, but for this subsection, become eligible to receive a pension under this Part or Part II as the child of another deceased person, being a member of the Forces, a member of a Peacekeeping Force or a veteran, the Commonwealth is liable to pay a pension to the person under this Part or Part II as the child of only one of those deceased persons, and, if the rate at which that pension would be payable as the child of one of those deceased persons (in this subsection referred to as the relevant deceased person) is higher than the rate at which that pension would be payable as the child of the other of those deceased persons, then:
(a) if the relevant deceased person is a member of the Forces or a member of a Peacekeeping Force—the Commonwealth is liable to pay a pension to the person under this Part as the child of the relevant deceased person; or
(b) in any other case—the Commonwealth is not liable to pay a pension to the person under this Part.

7. The relevant Statement of Principles are:
   • (a) Alcohol Dependence: Instrument 2 of 2009 (including 77 of 1998 and 18 of 2008);
   • (b) Anxiety Disorder and Panic Attacks: Instruments 102 of 2007 and 2 of 2000; and
   • (c) Depressive Disorder: Instrument 28 of 2008 and 18 of 2007.

THE EVIDENCE

8. The evidence before the Tribunal at the hearing was comprised of:

(1) The “T-Documents”[5] lodged by the Repatriation Commission (“Respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

(2) A letter tendered by the applicant written by himself to Mr Bob Richards dated 19 November 2009;[6]

(3) A letter tendered by the applicant written by Ms Diane Wilkinson, the applicant’s ex-wife dated 17 November 2009;[7]

(4) The applicant’s Statement of Issues (the Exhibit is dated 22 November 2005 but was received by the Tribunal on 24 November 2009);[8]

(5) A letter tendered by the applicant written by himself to Mr Bob Richards (undated) but faxed on 24 June 2008;[9]

(6) A letter tendered by the applicant written by Dr J Hargreaves, Psychiatrist, Greenslopes Private Hospital dated 18 March 2010;[10]

(7) The applicant’s Statement of Facts and Contentions dated 21 June 2010;[11]

(8) The respondent’s Statement of Facts and Contentions dated 30 September 2010;[12]

(9) The applicant’s medical records provided by the Australian Defence Force (“ADF”) for the period 31 May 1966 to 27 March 1979;[13]

(10) Document tendered by the respondent entitled “Medical Employment Code” dated 4 December 2003 and “Health Directive No 236: Medical Employment Classification Procedures” dated 7 August 2001;[14] and

(11) A power-point presentation tendered by the respondent prepared by Dr P A Grant dated 23 June 1999.[15]

9. The applicant also called Dr Hargreaves, a Psychiatrist from Greenslopes Private Hospital. Dr Hargraves gave evidence by phone. He advised the Tribunal that he had prepared medical reports for the applicant on 11 July 2007,[16] 19 August 2008,[17] 29 March 2009,[18] 18 June 2009[19] and 18 March 2010.[20]
10. At the end of the hearing, the parties were requested to provide further written evidence to support their arguments. The parties were requested to use the medical research literature and identify the temporal variations of when and in what time frame the research indicated the applicant’s conditions would likely be observed within a patient consistent with the research. For example, would the condition become apparent within two years or would it normally take an extended period of time (eg ten years) for similar conditions to be observed based on medical research from comparative studies? The parties provided written submissions, these being:

(1) The respondent’s written submissions dated 17 November 2010; and

(2) The applicant’s written submissions dated 16 December 2010.

11. These submissions will be discussed later in the decision, but importantly, the Tribunal found both the applicant and the respondent’s submissions of very little assistance as neither of the parties addressed the directions of the Tribunal.

APPLICANT’S EVIDENCE

12. The applicant was born on 13 February 1949. He entered the ADF on 20 June 1966, served 6 years and was discharged 19 June 1972.[21] At the end of his service in 1972, he undertook sand mining on Stradbroke Island. He married his first wife in 1969.
13. During his first term of service, the medical evidence was that his psychiatric evaluations considered that he was normal and he was fit as a passenger as aircrew. He served overseas on at least two deployments, these being in Zimbabwe and Egypt. The applicant indicated that he was a light to moderate drinker (would probably consume 3–4 glasses of beer a day)[22] although the written evidence indicates that the applicant considered himself a moderate drinker.[23] The applicant argued that when he answered the alcohol questionnaire he was considering his whole time in the ADF and not at the beginning of his service.[24] Importantly, the same answers were given in the preparation of a medical report – alcohol consumption hypertension.[25]
14. In or about June 1974, with the agreement of his then wife, the applicant again enlisted in the ADF with his service being from 10 June 1974 until 9 June 1980.[26] At the time, he was posted to the RAAF in the Medical Corp in Melbourne, as a supply clerk. He was later posted to Richmond.
15. The applicant indicated that the specific episode that caused him to drink heavily was immediately after Cyclone Tracey devastated Darwin on
    24 December 1974. The applicant stated that he was advised by his superior officers on 30 December 1974 that he was being posted to Darwin on a single attachment for an indefinite period.
16. At this time, the applicant lived with his wife who had recently given birth to a baby on 22 November 1974 (Child B) and also had a two year old daughter who had epilepsy (Child V). The applicant stated, and this is corroborated by medical evidence by Dr Hargreaves based on his discussions with the applicant, that his then wife suffered from post-natal depression. This disorder caused his wife to have a lack of bonding with the child, she could not sleep, she had an inability to undertake the role of a mother and overall was in a state of despair.
17. The evidence is that as a result of these factors, the applicant’s wife became far less tolerant and more critical of his actions. She was also very upset particularly in that she was not receiving support from her family who lived in Queensland and she considered she would be unable to cope with the two children on her own. From the medical evidence,[27] this caused the applicant to increase his consumption of alcohol above what he normally drank.
18. The applicant stated that when he went home and advised his wife of his posting to Darwin, she “hit the roof” and this obviously placed additional strain on the relationship and caused further increases in the consumption of alcohol.
19. After lengthy consultation with his then wife, the applicant determined that he would have to reject the posting although he was concerned that this would significantly impact on his future in the ADF. The applicant’s evidence was that the posting was cancelled by Group Captain Tebbutt and Squadron Leader Ella Bone, who was the Principal Nursing Sister. The Principal Nursing Sister’s primary concern was for his wife.
20. The applicant stated that as a result of the posting, the subsequent cancellation and his issues at home, he began drinking heavily in December 1974 and January 1975. Not long after these events, the marriage failed, and moreover his ex-wife placed a restraining order on the applicant as a result of his drinking. He was finally divorced in 1978.
21. Subsequent to the separation from his wife, in 1978, the applicant was transferred to Mobile Air Terminal Unit at the RAAF base at Richmond. Between 1976 and 1978, the applicant was required to undertake numerous medical examinations and was diagnosed with hepatosplenomegaly.[28] In 1978, he reduced his alcohol consumption from heavy to moderate.[29] On the same date, the applicant completed a medical report – alcohol consumption hypertension which indicated that he consumed 100 ounces of beer a day and was a heavy drinker from 1967.[30] About the time of his discharge in 1980, the applicant was observed to be overweight and have acceptable blood pressure only when lying down.[31] His own and Dr Hargreaves’ report suggests that he also became a heavy smoker.
22. In or about 1979, the applicant met his now wife and they lived in a defacto relationship together until they were married in 1997. After he left the ADF on
    9 June 1980, he held a number of jobs until he became a commercial net and crab fisher but sold his licence in 1998.[32] In 2000, he underwent heart surgery and has been a light drinker since that time.

MEDICAL EVIDENCE

23. The applicant relied upon medical reports by Dr Robert Athey and Dr Jonathan Hargreaves. Dr Hargreaves gave evidence by phone.
24. Dr Athey’s report provided a comprehensive evaluation of the applicant in 2005. The report was prepared on the request of the respondent. Dr Athey states that the applicant suffers from Alcohol Dependence Syndrome which appears to date back to his second period in the RAAF when the applicant was encouraged to drink heavily. Dr Athey makes reference to the applicant’s original term of service where he states that the applicant did not drink excessively but that his alcohol intake increased during his second term of deployment. Moreover, nowhere in his report does Dr Athey refer to any particular event, including the Cyclone Tracey deployment heavily relied upon by the applicant as the cause of his condition. The only mention is that of his separation and the breakup of his marriage. This raises significant discrepancies in the applicant’s evidence for the Tribunal.
25. Strangely, Dr Athey appears to suggest that the applicant found the last three years of his service the most stressful. This could suggest that his alcohol dependency may have arisen from his period in the ADF but in contrast would nullify his argument that the event that caused his alcohol dependency was at the end of 1974. Further, it would appear that the applicant was heavily drinking prior to this time.
26. Dr Hargreaves stated that he saw the applicant for the first time in February 2007 and would see him about four times a year. Dr Hargreaves then started seeing the applicant monthly during 2009 and bi-monthly in 2010.
27. Dr Hargreaves gave evidence as to his report from July 2007[33] and others prepared subsequently. The July 2007 report was prepared on the request of the respondent. The 2007 report indicated that the applicant had only been diagnosed with anxiety in 2004 based on Dr Athey’s report.[34] Dr Hargreaves stated that the applicant’s drinking was initially peer group influenced and that this occurred as early as when he was 17 years old. He further indicated that the applicant would see old colleagues, all of whom were heavy drinkers. The finding that the applicant consumed large amounts of alcohol in the first period of his service, follows that provided in writing by the applicant.[35]

ANALYSIS

28. It appears that there is consent that the applicant suffers from anxiety disorder and panic attacks, depressive disorder and alcohol dependency. Therefore, the Tribunal does not need to discuss these issues and make any real determination on evidence issues arising out of these matters. There also appears to be consent as to Adjustment Disorder, this being the break-up of his marriage. However, the Tribunal must determine whether the applicant suffered from anxiety disorder and panic attacks, depressive disorder and alcohol abuse were defence-caused consistent with s 70 of the Act.
29. The applicant’s case is that he became alcohol dependent as a result of the tumultuous events with respect to the proposed Darwin posting and subsequent cancellation, and as a result, he suffered severe traumatic effects that caused severe psychological damage. In this case, the eligible service period is from 10 June 1974 until 9 June 1980 but the Tribunal is required to consider all aspects of the matter when making its determination under s 120 of the Act and the relevant cases.[36]
30. It is noted that the applicant completed two alcohol questionnaires in 2005. In those questionnaires, the applicant indicated that he commenced drinking in 1966, that he only drank beer, and when asked as to the quantity, stated that he would have 8-10 glasses a day (or 100 ounces), and would binge drink on weekends and public holidays. This appears to be consistent with the reports of Dr Hargreaves but in conflict with that of Dr Athey. He further stated that his alcohol consumption was as a result of peer group pressure and moreover, that it helped him cope through changes in his life. The overwhelming evidence is that the applicant consumed large amounts of alcohol at an early stage, and this would include the first term of his service.
31. It is clear that the applicant did not have a happy family situation in his first marriage and moreover, his second marriage has required that the parties accept the applicant’s drinking, although predominantly reduced, except for occasional binges. Not only did the applicant’s first wife not drink, it is clear that she had significant issues with the alcohol consumption of the applicant and did not appreciate him socialising with other military personnel. Moreover, the relationship and subsequent breakdown can also be attributed to the medical conditions suffered by Child V and the wife’s post-natal depression. While the Tribunal feels for the applicant in this regard, the Tribunal also feels that this was something that caused the applicant to drink excessively and suffer from his medical conditions then and into the future.
32. The parties were requested to provide written submissions on the time it would normally take a person to become alcohol dependent and to exhibit the conditions that the applicant had in or about 1977 and 1978. The parties were asked to research the medical literature and provide examples as to how long the literature indicates it would take for hepatosplenomegaly to develop after the moderate consumption of alcohol and other events. This would provide evidence to either assist or rebut the applicant’s arguments that his symptoms are as they say they are. This request was made so as to inform the Tribunal as to whether it was possible for someone, and in this case, the applicant, to suffer from significant medical conditions as a result of drinking within a two year time span.
33. It is of concern that neither of the parties followed the Tribunal’s directions except for say the letter of Dr Liaw attached to the applicant’s written submissions. With respect to that letter, the Tribunal is unable to put much weight on it as the contents are not supported by any medical evidence from the literature.
34. If, for example, the applicant had been able to show that splenomegaly and the other conditions that affected the applicant in 1977 and onwards could have been the result of only two years consumption of alcohol based on both the applicant’s evidence and that of the medical literature, the applicant could have swayed the Tribunal’s view that it might be possible that the applicant’s alcohol dependency was solely defence related and could warrant the decision to be set aside.
35. In the alternative, had the respondent provided examples that would suggest that it was almost impossible for the applicant to have suffered the conditions within the two year time frame and it was more than likely, that it would be normally ten to twelve years for the onset of these conditions, then it would have nullified any argument the applicant might have had.
36. However, neither of the parties provided any medical research literature about these particular issues. The Tribunal does note the letter of Dr Liaw as part of the applicant’s additional material; however it is merely a statement that is not supported in any way, and therefore it does not follow the directions of the Tribunal and accordingly, the Tribunal is forced to consider the evidence as it was presented at the original hearing. The Tribunal is of the opinion that it is highly unlikely that these conditions would occur within such a short time period and is of the view that medical conditions such as those of the applicant would be over the medium (6-10 years) to long term (>10 years) afflications.
37. The Tribunal finds that its was a combination of things, including heavy drinking, the breakup of the marriage and possibly, although less than likely, the potential impact of the posting, as it was such a short time, that has resulted in the applicant being alcohol dependent. The Tribunal is of the view that is it highly unlikely that the applicant’s conditions could have occurred within such a short time frame, this being the time when the applicant was advised of the posting and the onset of his medical condition (eg days). The evidence indicates that the applicant was a moderate to heavy drinker from 1966 onwards. It also finds that the family relationship was less than harmonious and this clearly resulted in the applicant drinking significantly to alleviate the stress of a sick child and a newborn. This Tribunal does not discount the possible impact of an event such as the posting having an impact, but on the balance of probabilities, it cannot find it as the distinguishing event that caused the overwhelming problem. Accordingly, this would suggest that the event of the posting and subsequent cancellation of that posting to Darwin was not the trigger that resulted in the applicant’s conditions.

DETERMINATION

38. The Tribunal finds that the applicant has the medical conditions proposed but that they are not defence caused. While the Tribunal emotionally feels for the situation that the applicant was placed in in late 1974, the Tribunal considers that there was a moderate to heavy consumption of alcohol as far back as 1966 which have probably caused the conditions of the applicant and moreover, these conditions were exacerbated by the issues within the family relationship. While the applicant’s potential posting to Darwin may have been part of the overall condition, the Tribunal finds that this event was not something that had a significant contribution to the applicant’s final condition which, in its view, commenced prior to the eligible period.
39. The Tribunal affirms the VRB decision.
    

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

Signed:..................[Sgd]............................................................

Associate

Date/s of Hearing 5 December 2010

Date of final submissions 17 January 2011

Date of Decision 21 March 2011

Applicant was represented by Bob Richards, Advocate

Respondent was represented by Terry Thrupp

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[1] Exhibit 1, T2/D-J
[2] Exhibit 1, T1/C, T5/224-233 and T6/234
[3] Exhibit 1, T4/116-125
[4] Exhibit 1, T1/B
[5] Exhibit 1 (T1-T6/A-K and 1-234
[6] Exhibit 2
[7] Exhibit 3
[8] Exhibit 4
[9] Exhibit 5
[10] Exhibit 6
[11] Exhibit 7
[12] Exhibit 8
[13] Exhibit 9
[14] Exhibit 10
[15] Exhibit 11
[16] Exhibit 1, T4/158-161
[17] Exhibit 1, T4/199
[18] Exhibit 1, T4/202-204
[19] Exhibit 1, T4/223
[20] Exhibit 6
[21] Exhibit 1, T4/1
[22] Exhibit 5
[23] Exhibit 1, T4/37-39
[24] Exhibit 5
[25] Exhibit 1, T4/77-78
[26] Exhibit 1, T4/1
[27] Hargraves Report 29 March 2009.
[28] Exhibit 1, T4/2-23 – numerous duplicates.
[29] Exhibit 1, T4/9 and 10.
[30] Exhibit 1, T4/77-78.
[31] Exhibit 1, T4/2
[32] Exhibit 1, T4/24-28
[33] Exhibit 1, T4/158-161
[34] Exhibit 1, T4/90-99
[35] Exhibit 1, T4/159
[36] See for example, Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at 634; Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200 at 204-205; Repatriation Commission v Cooke (1998) FCR 307; Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 at 598-599; Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 at 700-702.