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Burchett, Nicholson & Finkelstein JJ

26 February 1999

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Mrs Shelton appealed to the Full Federal Court against a decision of Emmett J dismissing her appeal against a decision that the death of her late husband was not war-caused. (See 14 VeRBosity 70)

The Tribunal had found that there was a reasonable hypothesis linking death from ischaemic heart disease to war service by way of hypertension caused by excessive consumption of alcohol, itself caused by the psychological effects of war service. That hypothesis was upheld by a Statement of Principles in respect of hypertension, based on the factor of "psychoactive substance abuse". However, the Tribunal was satisfied beyond reasonable doubt in terms of s 120(1) of the VE Act that the veteran did not suffer from psychoactive substance abuse as defined in the Statement of Principles or in the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV").

In reaching its decision, the Tribunal relied on evidence that the deceased, whose drinking of alcohol had been heavy at one stage, and was generally, over a substantial period, somewhat above a moderate level, had reduced his intake of alcohol in the 1970s as a result of medical advice; that he had further reduced his alcohol intake in about 1985 to "two beers and two wines per day"; that he never took time off work because of drinking; was never violent; never had a serious car accident; was never charged with a driving offence; and had a good relationship with his children. It found no evidence that the deceased's drinking was at a level he could not control.

Mrs Shelton's counsel submitted that the Tribunal had erred in its construction of the Statement of Principles. It was argued that the definition in the Statement of Principles referred to "continued use of the substance despite knowledge of having a persistent ... physical problem that is caused or exacerbated by use of the substance." Reading this literally, counsel said the reduction in use which occurred was not to the point; the use continued, albeit at a lower level, despite knowledge of the persistent physical problem of hypertension.

The Full Court said that the word "indicated" in the expression "means a maladaptive pattern of use indicated by either ..." is equivalent to "pointed to by". The definition still requires that there be the disease entity to which the named symptoms point. That disease entity is a "maladaptive pattern of use". If the level of drinking does not constitute a maladaptive pattern of use, the fact that some use of alcohol continues cannot indicate a condition which does not exist.

The Court referred to the definition of "psychoactive substance abuse" in DSM-IV in support of its conclusion. It said that a definition framed to reflect the Manual is looking at a disease manifested by certain behaviour which is symptomatic of the disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.

The Court also held that there was no evidence in this case of psychoactive substance abuse continuing until the accurate determination of hypertension. The Court therefore dismissed the appeal.

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