Armstrong and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 566

Armstrong and Repatriation Commission (Veterans’ entitlements) [2015] AATA 566 (5 August 2015)

Division	Veterans’ Appeals Division
File Number	2013/5055
Re	PAMELA JEAN ARMSTRONG
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	Dr Gordon Hughes, Member
Date	5 August 2015
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for widow’s pension from 5 January 2012.

...............................[sgd]....................................

CATCHWORDS

VETERANS’ ENTITLEMENTS - widows' pension – whether death of veteran ‘war caused’ - excessive alcohol intake during full time Army service between 1975 and 1983 – death from ischaemic heart disease, with hypertension a contributing factor – whether Army service contributed to hypertension – "drinking culture" in the regular Army – whether exposure to a "drinking culture" which contributed to hypertension means that the hypertension arose out of or was attributable to defence service.

LEGISLATION

Veterans' Entitlements Act 1986 ss 70(5)(a), 120(1)

CASES

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 49 ALD 193

SECONDARY MATERIALS

Statement of Principles Concerning Hypertension No. 64 of 2013Statement of Principles Concerning Ischaemic Heart Disease No. 90 of 2007

REASONS FOR DECISION

5 August 2015

Background

1. A claim by the applicant for widows' pension was refused by the respondent on 10 July 2012.  This decision was affirmed by the Veterans' Review Board on 12 July 2013.

2. The applicant's husband Fred Carlisle Armstrong (Mr Armstrong) died of ischaemic heart disease on 27 July 2009, aged 80 years.  He had served in the regular Army between 18 September 1979 and 24 October 1983 as an Army chaplain.  Previously he had served in the Citizen Military Forces (CMF) part-time between 24 February and 30 December 1949, and between 10 April 1963 and 17 September 1979.  After retiring at the age of 55 years, he worked variously as a hospital chaplain, religious instruction teacher, security officer and locum priest.

3. The deceased had a record of exemplary service in the Army.  Upon his retirement in 1983, the following was included in his service record:

   Chaplain Armstrong is a dedicated officer who has contributed immensely to the welfare of all servicemen and their families in the Area.

   He has constantly sought to improve his knowledge and his new skills have been most effective in the consulting of young soldiers.

   He is readily accepted and respected by all ranks in the Broadmeadows Area and his retirement will be a loss to the Army.

4. Notwithstanding his impressive record of service, according to his widow the deceased drank heavily during his time in the Army.  He died from ischaemic heart disease, consequent upon hypertension, 26 years after being discharged from the Army.  It was acknowledged that there was a link between his period of heavy drinking and his heart condition.  The issue before the Tribunal was whether, and to what extent, there was a link between his service in the Army and the development of his drinking habits.

   Legislation

5. Section 70(5)(a) of the Veterans' Entitlements Act1986 provides:

   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;

6. Section 120(1) of the Veterans' Entitlements Act 1986 provides:

   Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

7. Factor 6(b) of  the Statement of Principles Concerning Hypertension (Instrument No. 64 of 2013) provides:

   The factor that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a persons’ relevant service is:

   …

   (b) consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension

8. Factors 6(a) and (b) of the  Statement of Principles Concerning Ischaemic Heart Disease (Instrument No. 90 of 2007) provide:

   The factor that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person’s relevant service is:

   (a)      having hypertension before the clinical onset of ischaemic heart disease; or

   (b)      having diabetes mellitus before the clinical onset of ischaemic heart disease;

   Discussion

9. The parties agreed on the essential background facts.  There was no dispute that the deceased died at the age of 80 years on 27 July 2009, with the cause of death being certified as acute coronary syndrome (2 mins), extensive left anterior descending artery obstruction (10 years), type II diabetes mellitus (2 years) and hypertension (20 years).  There was also no dispute that the deceased had suffered the onset of ischaemic heart disease in 2004, and that hypertension was a contributing factor. 

10. Relevant to this background, there was evidence before the Tribunal from Professor Harper, consultant cardiologist.  Professor Harper, in a report dated 27 June 2014, stated that the deceased was first noted as suffering high blood pressure on 16 November 1977. Mr Armstrong complained of symptoms consistent with ischaemic heart disease at the beginning of 2004 and underwent coronary artery bypass surgery in July 2004, leading Professor Harper to conclude that the clinical onset of ischaemic heart disease was January 2004.  Professor Harper was of the view that hypertension was a major cause of Mr Armstrong's heart disease and death.

11. The principal issue in contention was the cause of the deceased's hypertension; and, specifically, whether and to what extent the deceased's hypertension, and hence his ischaemic heart disease, arose out of or was attributable to his defence service.

12. Central to the Tribunal's deliberations are the applicable Statements of Principles, issued under section 196B(8) of the Veterans’ Entitlements Act.  The Statements of Principles are legislative instruments which set out the factors which can connect particular injuries, diseases or death with service. The Statements of Principles are determined by the Repatriation Medical Authority, and specify what factors could cause a medical condition that is the subject of a claim. In order for a claim to succeed at least one of the factors set out in the Statements of Principles must be related to service.

13. The Statements of Principle are binding on all decision makers.  All decision makers must decide whether any of the factors in the Statement of Principle for the condition being investigated apply to the person making the claim. If one of the factors applies, then the decision maker must determine if it is also connected to the service of the claimant.

14. The relationship between the Statements of Principle and section 120 was discussed by Heerey J in  Deledio v Repatriation Commission (1997) 47 ALD 261:

    It is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoP's function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can "uphold" the hypothesis.

15. In Repatriation Commission v Deledio (1998) 49 ALD 193, Beaumont, Hill and O'Connor JJ set out the course which the Tribunal should take:

    1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

    2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis stated 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 services (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

    4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond a reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must so 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.

16. In this case, there is no question that the "hypothesis" referred to in Deledio exists, involving an alleged connection between the deceased's drinking habits, his hypertension and his ultimate death.

17. This being the hypothesis, there are relevant Statements of Principles in force, namely, the Statement of Principles concerning Hypertension, No. 64 of 2013 and the Statement of Principles concerning Ischaemic Heart Disease, No. 90 of 2007.

18. It is next necessary to determine whether the hypothesis raised – that is, that the deceased's drinking habits contributed to the onset of his hypertension which in turn ultimately led to his death – embraces one or more of the factors which the relevant Statements of Principles specify must exist. 

19. In relation to ischaemic heart disease, Factor 6(a) of Instrument No. 90 of 2007 refers to having hypertension before the clinical onset of ischaemic heart disease.  Factor 6(b) refers to having diabetes mellitus before the clinical onset of ischaemic heart disease. 

20. In relation to hypertension, Factor 6(b) of Instrument No. 64 of 2013 refers to consuming an average of at least 500gs of alcohol per week for at least the six months before the clinical onset of hypertension.  The Tribunal was told that 500gs was the equivalent of 50 standard drinks.

21. The applicant contended that for at least six months before the clinical on-set of hypertension, the deceased was consuming an average of at least 50 standard drinks of alcohol per week.  This would satisfy one of the factors in Instrument No. 64 of 2013. 

22. The applicant further contended that hypertension made a contribution to the veteran’s ischaemic heart disease, consistent with Instrument No. 90 of 2007, thus satisfying another of the factors.  The existence of this factor was not disputed by the respondent. 

23. Against the above background, it is left to the Tribunal to consider whether it is satisfied beyond reasonable doubt that the death of the deceased was not caused by his service in the Army. 

24. When the applicant made a claim for widows' pension on 3 March 2010, she stated in an Alcohol Questionnaire that her husband had commenced drinking alcohol on enlistment and that he drank 10 x 10 oz a week.  In a statement dated 11 August 2014, the applicant stipulated that Mr Armstrong drank alcohol every day at lunch time and would typically drink a large bottle beer and half a bottle of red wine at dinner time. She added that on many occasions she had to collect him from the Mess because he had drunk too much.

25. A consultant psychiatrist, Dr Majoor, expressed the opinion that the deceased developed anxiety problems associated with a high level of alcohol consumption and that his eligible defence service was a contributing factor.  The deceased was not suffering from symptoms that were overwhelming to him at the time but both the generalised anxiety disorder and alcohol abuse developed after his enlistment and as a consequence of his defence service.

26. The applicant asserted that the veteran’s duties as chaplain in the Australian Army were significantly more stressful than similar duties in civilian life as he was required to provide pastoral care to veterans who had given service in Vietnam and had been exposed to Agent Orange.  He also dealt with marriage break-ups and counselled soldiers undertaking drug and alcohol rehabilitation programs.  He provided advice to soldiers who were in financial or legal difficulty, and had to provide support to grieving families following deaths.  On occasions he was required to deal with aftermath of suicide.

27. The applicant gave evidence before the Tribunal in a frank and plausible manner as to her perception of how the deceased's occupation led to his increased alcohol consumption.  She referred, amongst other things, to what she perceived as a drinking culture within the Defence Force environment.

28. The applicant contrasted the deceased's lifestyle prior to joining the regular Army.  Between 1953 and 1975, as an Army Reserve chaplain, he would report for duty on average about once per month, and occasionally would be absent for periods of a fortnight.  After joining the regular Army, however, his work was full on.

29. The applicant stated that prior to joining the regular Army, the deceased only drank at weekend celebrations, and hardly ever during the week unless there was a birthday or some other family event to celebrate.

30. The applicant stated that one reason for the increased stress experienced by the deceased after joining the regular Army in 1975 was that his work was no longer confined to one religious group, but to soldiers of all denominations.  These soldiers had a range of social problems.  His work included counselling, hospital visits and lecturing.  Typically, he would leave home at 7.30am and return between 5.30 and 7:00pm.  He was often called out at night – at least twice a week, sometimes more.

31. The applicant told the Tribunal that the deceased would reflect on some of his workday issues when he returned home in the evening.  Sometimes he would refer to a sad day. He could be personally affected because he knew the individuals who were touched by tragedy.

32. The deceased's work included drug and alcohol counselling, a role which he enjoyed, according to the applicant, even though it was stressful.  It was noted in the deceased's 1981 performance assessment:

    Padre Armstrong is a tower of strength in the Broadmeadows Military Area.  He is respected by military and civilian members.  He has been the driving force in the recent seminars for all ranks on Alcohol and Drug Abuse arranged with the Victorian Foundation for Alcohol and Drug Abuse.  In his own time he does much counselling.  Padre Armstrong is a most effective padre.

33. The applicant told the Tribunal that once her husband enlisted in the regular Army, he was drawn into a culture of heavy drinking, an environment in which alcohol was freely available in the Mess and an environment in which he was expected to attend functions, at which alcohol was consumed, at least once a month.  He started buying alcohol and bringing it home.  He would also commonly receive gifts of alcohol.

34. During the weekends there was, according to the applicant, a constant stream of visitors, on which occasions everyone drank.

35. After about six months in the Army following his enlistment in 1975, the deceased was drinking a bottle of beer each night, along with half a bottle of wine.  He would sometimes, but not always, have a further drink after dinner, perhaps a whiskey or a port, particularly if they had company. The applicant was unsure as to the extent that the deceased drank during the day, but she was aware he would often drink after work prior to returning home.

36. The applicant told the Tribunal she never raised the issue of alcohol with her husband because this would have been an uncomfortable conversation.

37. The applicant told the Tribunal that the deceased's alcohol consumption reduced after he left the Army. He hardly drank after his heart surgery in 2004.  After leaving the Army, he worked on a farm at Mickelham, a physical occupation which he enjoyed.

38. An Alcohol Questionnaire completed in part by the applicant and in part by her representative asserted that the deceased's consumption of alcohol was due to, or contributed to by, his Army service for many reasons, including attending the officers' mess, being called out at all hours, dealing with family crises involving soldiers and being called upon to attend at traumatic incidents. 

39. The respondent contrasted the applicant's assertions in the Alcohol Questionnaire with an application for pension lodged by the applicant, again completed with the assistance of a representative, in which, in answer to the question Did the veteran ever consume alcohol?, the response had been Occasionally.  The applicant explained to the Tribunal that the word occasionally was not accurate for the period of the deceased's service between 1975 and 1983, but it was an accurate description of his habits before and after his full time service in the Army.

40. The respondent queried whether the deceased's alcohol consumption had been as intense as suggested during the period of his Army service.  The respondent emphasised that as a drug and alcohol counsellor, the deceased would have been well aware of the effects of excessive alcohol consumption, suggesting that he would have been alert to the dangers and capable of self-diagnosing a problem.

41. Relevantly, the respondent drew the Tribunal's attention to a series of performance assessments submitted by or in respect of the deceased throughout the period of his service.  A constant theme running through these performance assessments was that the deceased expressed full satisfaction with his job, suggesting that he may not have been subject to ongoing significant stress (and hence making a link between stress and hypertension more difficult to draw).

42. By way of example, in his 1981 assessment, the deceased described his level of satisfaction as high.  The applicant did not disagree with this self-assessment, commenting to the Tribunal that her husband loved his work. 

43. In 1982 the deceased's performance appraisal again contained a self-assessment of high satisfaction with his employment, with an added comment that I am still as interested in my work as I was at the beginning of my appointment in 1975.

44. In 1983 the deceased again ranked his level of satisfaction as high, with the added comment that My current appointment commenced in 1975 and has always been of great interest and challenging to me as a chaplain.

45. The respondent also brought the Tribunal's attention to a medical history dated 16 November 1977, taken when the deceased was hospitalised with pneumonia, which described his alcohol habit as social only.  The applicant explained to the Tribunal that this history must have been provided by the deceased in a state of delirium.  She would not herself have described his drinking habits at that stage as social only.

1. The Tribunal finds it difficult to ignore the temporal link between the deceased's service in the Army and his increased alcoholic intake.  He was not a heavy drinker before he joined the Army, and his alcoholic intake diminished significantly upon his retirement.

2. The Tribunal is mindful that the deceased was a drug and alcohol counsellor but is not persuaded that any conclusions can be drawn from this role in relation to the nature and extent of his own alcohol habits. 

3. The Tribunal is also mindful that the deceased from all accounts enjoyed his job and derived great satisfaction from it throughout his term of service.  Again, however, the Tribunal does not consider that this is evidence of the absence of a drinking problem attributable in part to the stresses of the job and in part to the environment in which he worked.  To the contrary, there is evidence of a certain expectation amongst colleagues and associates that the deceased should consume alcohol, peer pressure which appears directly related to his Army service. 

4. In light of this evidence, the Tribunal cannot be satisfied beyond a reasonable doubt that the hypertension which ultimately contributed to the deceased's death did not arise as a direct consequence of his service in the Army. 

   Decision

5. The Tribunal cannot be satisfied beyond a reasonable doubt that there are no sufficient grounds for determining that the veteran’s death was war caused.  For the reasons set out above, the Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for widow’s pension from 5 January 2012.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member.

.............................[sgd]......................................

Associate

Dated 5 August 2015

Date of hearing	2 July 2015
Counsel for the Applicant	Ms F C Spencer
Solicitors for the Applicant	Williams Winter
Advocate for the Respondent	Mr K Rudge
Solicitors for the Respondent	Department of Veterans' Affairs