Bentley and Repatriation Commission

[2004] AATA 622

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 622

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/176

VETERANS' APEALS  DIVISION		)
Re		IAN CHARLES BENTLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date18 June 2004

PlaceHobart

Decision The decision under review is set aside and in substitution therefor the Tribunal finds that the veteran's claimed disability of hypertension was caused or contributed to by service in the Royal Australian Navy and is therefore war-caused.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - operational service - eligible service - war-caused - service caused - alcohol dependence or abuse - hypertension - anxiety/psychiatric condition - SoP - VRB.

Veterans’ Entitlements Act 1986

Statement of Principles issued by the Repatriation Medical Authority

Repatriation Commission v Deledio (1998) 391 FCA

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Mechan v Repatriation Commission (2002) FCA 996

Kattenberg v Repatriation Commission (2002) FCA 412

REASONS FOR DECISION

18 June 2004	Associate Professor B W Davis AM (Part-time Member)
Decision Under Review

1.      This is an appeal against a decision of the Repatriation Commission dated 5 July 2001, subsequently affirmed by the Veterans’ Review Board (VRB) on 1 July 2002, whereby the applicant’s claim to have the conditions of hypertension and anxiety/hypertension accepted as war-caused or service-caused was refused.

Issues

2.      The issue for determination by the Tribunal is whether applicant’s claimed condition of hypertension was caused or contributed to by service in the Royal Australian Navy (RAN).

3.      The applicant has abandoned appeal insofar as the decision of the VRB of 1 July 2002 relates to a claim for anxiety/psychiatric condition.

Standard of Proof

4. As the applicant rendered operational service for various periods between April 1957 and February 1968, the standard of proof for those periods is contained in s120(1) and (3) of the Veterans’ Entitlements Act 1986  (“the Act”).

5. There was a further period of eligible service between December 1972 and February 1975. Here the standard of proof is that prescribed in s120(4) of the Act.

Date of Effect

6.      As an appeal to the VRB was lodged outside the prescribed time limits, should this appeal succeed the earliest date of effect would be 16 September 2000, being six months prior to lodgement of the appeal.

Dates of Service

7.      Eligible service between:

(a)      5 April 1957 – 7 May 1957

(b)      7 June 1957 – 28 June 1957

(c)       25 march 1959 – 28 April 1959

(d)      12 May 1959 – 9 June 1959

(e)      18 June 1959 – 17 August 1959

(f)       31 August 1959 – 9 September 1959

(g)      18 September 1959 – 10 October 1959

(h)      16 November 1959 – 5 December 1959

(i)        16 May 1967 – 8 June 1967         

(j)        25 January 1968 – 5 February 1968.

Operation service between:

(k)       7 December 1972 – 24 February 1975.

Context

8.      The applicant, Ian Charles Bentley, was born in Melbourne on 9 October 1937 and joined the Royal Australian Navy (RAN) in November 1954 at the age of 17 years.   He did not drink alcohol at the time, but in the company of older men, soon acquired the habit, but not to excess.

9.      He was trained at HMAS Cerberus until the end of 1955, when he was posted to HMAS Albatross for an additional year as a prospective officer.   During this period he increased alcohol consumption and was treated for an anxiety state on 20 February 1956.     He started bedwetting at this time, causing great embarrassment and a further increase in drinking.

10.     His next posting was to HMAS Melbourne in 1957, as a radio and electronics specialist.   He claims that pressure of work led to further alcohol dependence as relief.  Significant alcohol consumption continued during service on a number of ships and shore stations, including HMAS Harmen, HMAS Paluma, HMAS Sydney and HMAS Sturt.   During this period there were a number of shameful incidents, binge drinking, and he suffered a number of disciplinary charges and penalties, including one period in cells.    His service included periods in the Far East Strategic Reserve deployments in Singapore and Vietnam and although he did experience combat, was involved in rescue operations and other situations which were distressing.

11.     By 1969 his drinking was so severe that his wife and three children were threatening to leave him and there was peer pressure on him not to lose rank, having become a Chief Petty Officer.    He decided to forego alcohol for a month and has not drunk alcohol since.   After leaving the Navy in February 1975 his radio and electronics expertise permitted him to engage in selective part-time work.

Initial Determinations

12.     Mr Bentley submitted claims for disability pension in 1994, 1997 and 1998, claiming a number of maladies were service-related.   The only disability accepted for pension purposes was bilateral sensori-neural hearing loss with tinnitus in September 1998.  

13.     Mr Bentley submitted a further claim in year 2000, seeking to have hypertension and anxiety/psychiatric condition accepted, but both were refused by the Department of Veterans’ Affairs on 5 July 2000.   The reasons given were that diagnosis of the anxiety/psychiatric condition could not be confirmed and the applicant failed to meet criteria specified for hypertension in RMA Statement of Principles, Instrument No 25 of 1999.   The decision-maker considered there was no history of service-related alcohol dependence and while the veteran drank heavily in the 1950’s and 1960’s, this was regarded as a social habit rather than service related.

14.     Mr Bentley did not accept this determination and on 16 March 2002, sought review by the VRB.  The VRB hearing was held in Hobart on 1 July 2002, the applicant being represented by Mr A Dilba of the RSL, Hobart.   There was no appearance on behalf of the Repatriation Commission.

15.     The VRB considered a range of evidence, including comment by the veteran and his representative before concluding the applicant’s condition failed to satisfy relevant factors in Statement of Principles No 25 of 1999 concerning hypertension and Statement of Principles No 1 of 2000, concerning anxiety disorder.

16.     Although the claimed date of clinical onset of hypertension was disputed by several parties, the VRB decided to adopt an LMO Judgment that the appropriate date of onset of the disability was 1989 and the commencement of medication was about 1997, in which case the relevant factors could not be satisfied.   The claim for anxiety disorder was assessed on the basis of whether a stressor had occurred in the two year period immediately prior to clinical onset of anxiety disorder.   The VRB noted a report by Dr Burges-Watson dated 5 June 2000, that the veteran had no diagnosable psychiatric condition and so rejected the claim of anxiety disorder.

17.     The applicant disagreed with this assessment and sought review by the Administrative Appeals Tribunal on 17 September 2002.

AAT Hearing

18.     The AAT hearing was conducted in Hobart on 2 June 2004.   The applicant was represented by Mr Christopher Webster of counsel and the respondent by Mr Michael Castle.

19.     In opening submissions Mr Webster indicated he would present evidence of the material contribution which service conditions had made to the clinical onset and worsening of hypertension, arising in the main from alcohol dependence especially in the period 1956 to 1964.   Mr Bentley was then sworn and after submitting a proof of evidence, responded to a number of detailed questions about Naval service and his drinking habits during the period.   The veteran indicated that his memory was not precise about details so long ago, but he agreed his drinking habit was heavy and had increased during the period in question.

20.     Mr Bentley stated that aboard ship he had sometimes been able to supplement his alcohol ration by trading with others, on shore “binge” drinking became habit and in consequence of all these activities he had suffered various disciplinary penalties, including demotion and one period in cells.   When in Australia he slowed a little, especially during home leave, but when overseas for substantial periods in Singapore and Malaysia in 1959, his alcohol abuse led to hospitalisation, because ample shore leave had permitted ready access to alcohol.

21.     Mr Bentley was questioned about causation of these episodes.   He said much of his radio and electronic work was demanding and stressful, especially when he was responsible for the radar system, on which the ship depended.   There was pressure to perform and this rendered him anxious and viewing alcohol as relief.   It was not until 1969 that he was able to quit the habit.

22.     Under cross-examination the veteran agreed there were some inconsistencies in figures quoted about his alcohol consumption in various documents.   He admitted that in an alcohol consumption questionnaire dated 12 April 2000, he had listed the normal daily shipboard ration of two cans of beer, whereas he was often able to consume more.    His onshore “binges” were not recorded, thus his actual consumption was much higher than the official records might show.   His state of stress and anxiety were self-recognised by 1959, but he did not seek medical treatment, thus it did not appear in Naval records.

23.     Counsel for the applicant submitted a statement by Dr T Beard, dated 10 May 2003, indicating high blood pressure readings by the veteran in 1964, which would under current diagnosis would be regarded as hypertension.

24.     Dr M McKay was sworn and submitted a proof of evidence in the form of two letters dated 1 February 2001 and 13 February 2004 respectively, indicating that the applicant had suffered hypertension for many years, certainly being evident between 1964 and 1972 and then in labile form until 1997, but becoming more persistently elevated since 1998.

25.     In closing submissions Mr Webster argued that a clear hypothesis had been demonstrated between hypertension and alcohol dependence during Naval service.   Unless there was compelling counter-evidence the Tribunal was required to find Mr Bentley’s disability was service related.

26.     Mr Castle noted there was evidence of a drinking habit well prior to operational service and queried whether a real stressor existed in relation to the veteran’s normal shipboard duties.    There were also some doubts about the applicant’s claimed alcohol consumption at various times.

Analysis

27.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, giving due weight to statutory provisions and any relevant case determinations.

28.     In considering Mr Bentley’s initial claim to have hypertension and anxiety/psychiatric condition recognised, the original decision-maker focussed on salt intake, rather than alcohol dependence, since it was considered heavy drinking in the 1950’s and 1960’s was socially determined in the context of service life and not due to any diagnosed alcohol abuse or dependence caused by service.   Anxiety/psychiatric condition was similarly treated, as a psychiatric report dated 5 June 2000 indicated no diagnosable psychiatric illness was recorded at the time.   It was only later that further medical evidence led to a different perspective of the matter.

29.     The Tribunal notes that the VRB was unable to locate a diagnosis of alcohol dependence, but this is unsurprising, given later evidence by the applicant that much of his drinking was ashore rather than on board ship and in recording consumption it was the normal ration which was recorded rather than actual figures, not that the veteran ever accurately charted these.   Nonetheless there is a weight of evidence of disciplinary penalties sufficient to support a contention heavy alcohol intake was occurring at the time.   The date of clinical onset of hypertension is a matter of conjecture amongst witnesses, so the Tribunal must examine the evidence anew to reach a determination as to whether it exists and if so, whether it was or could be service-related.

30. In the case of operational service the relevant legislation is s120(1) and (3) of Act, while for eligible service it is s120(4) of the Act. The relevant Statements of Principles approved by the RMA was cited by the VRB as Instrument No 25 of 1999 or Instrument No 31 of 2001 concerning hypertension, but these are now replaced by Instrument No 35 of 2003 and Instrument No 3 of 2004.

31.     The first matter to be decided is whether a plausible hypothesis can be identified, linking alcohol consumption or abuse to the claimed disability of hypertension and whether the latter is service-related.   Following Repatriation Commission v Deledio (1998) 391 FCA (22 April 1998) no question of fact arises at this stage, but any prospective hypothesis must not be fanciful, but supported or pointed to by evidence.   Having examined the material before it, the Tribunal considers such a prospective hypothesis does exist, linking service conditions and alcohol dependence to the claimed disability of hypertension.

32.     The next point to be decided is whether there is a relevant Statement of Principles (SoP) in existence approved by the RMA dealing with the claimed disability, hypertension.  As previously stated, there are such SoPs, namely No 25 of 1999 and No 31 of 2001, but more recently No 31 of 2001 and No 3 of 2004.

33.     With an SoP in force, the Tribunal must consider whether the hypothesis is a reasonable one i.e. whether it fits the template the SoP provides.   Neither the original decision-maker nor the VRB considered this was the case, but the AAT must consider the matter anew and additional evidence has come to light.

34.     The relevant factors in SoP No 35 of 2003 are 5(b) and 5(q) concerning alcohol consumption.   Factor 5(b) involves consuming an average of at least 200 grams per week of alcohol, which cannot be decreased to less than the average of 200 grams per week, at the time of clinical onset of hypertension.   Factor 5(q) is much the same, but applies to worsening at the time of clinical onset of hypertension.

35.     The applicant is relying upon the period 1957 to 1964 to demonstrate the onset and persistence of heavy drinking, as well as recognition of blood pressure readings in 1964 indicative of hypertension, even if not diagnosed as such at the time.   Although the decision-maker and VRB have argued the clinical onset of hypertension occurred later, there is medical evidence indicating development of hypertension much earlier than the date they accepted i.e. 1989.

36.     Dr Burges-Watson noted high blood pressure of the veteran in 1964, but was focussed upon Mr Bentley’s psychological condition and did not comment on alcohol dependence or abuse.   In a letter dated 15 May 2003 Dr T Beard re-examined the 1964 medical records and indicated that at the time they would not have been classed as hypertension, but today they would certainly be diagnosed as hypertension.

37.     In a letter dated 27 August 2003 consultant psychiatrist considered Mr Bentley’s naval and civilian experience and noted the veteran was suffering psoriasis, high blood pressure, essential tremors and anxiety and had been hospitalised for the latter early in his naval career.

38.     Dr Mark McKay reported in February 2001 that by the age of 20 the veteran was regularly drinking 6 cans of beer per day and heavy intake of the order of 600-700 grams of alcohol per week, continued until he ceased drinking in 1969.   Dr McKay considered that during the period 1972 until 1997, he had fairly labile hypertension, but in 1998 his blood pressure became persistently elevated and medical treatment became necessary and continues.   No other medical condition was identified to explain hypertension but anxiety and hard drinking, plus increased salt intake during naval service.

39.     In a second report dated 13 February 2004, Dr McKay expressed a view that neurotoxic affects of alcohol had been a significant factor in inducing tremors and were a factor in age related neurodegenerative changes.   There was also the possibility of small vessel ischaemic changes occurring within the basal ganglia.   Such changes were brought about by his longstanding hypertension.

40.     The Tribunal notes that SoP Instrument No 3 of 2004 amends the period for recognition of hypertension to 6 months alcohol consumption immediately before the clinical onset or clinical worsening is recognised.   The Tribunal also notes that in Kattenberg v Repatriation Commission (2002) FCA 412, it was held that disciplinary changes could constitute a severe stressor for purposes of the Act and if smoking was involved (as it is in the background of the current case), this could be regarded as contributing in material degree to the disability suffered.

41. Taking all evidence into account it is clear that Mr Bentley’s long record of alcohol dependence or abuse, plus claimed stress and anxiety during service, meet the criteria specified in Factors 5(b) and 5(q) of SoP No 35 of 2003 and No 3 of 2004. The Tribunal must now consider whether under s120(1) and (3) of the Act it is satisfied beyond reasonable doubt the claimed incapacity was not war-caused or service-related.   If not so satisfied the claim must succeed, with no onus of proof required.

42.     While there remains some conjecture about the date of clinical onset of hypertension, medical evidence suggests there were indications of this disability as early as 1964 and at the time of leaving the Navy in 1975 it was diagnosed during a medical examination for superannuation.    This was some six years after the veteran quit drinking and smoking, but it is likely that considerable damage had already been done to the applicant’s health and as subsequent medical evidence indicates, degenerative change continued as he grew older.

43. Having considered all evidence anew the Tribunal finds on the balance of probabilities and in accordance with s120(1) and (3) of the Act, Mr Ian Charles Bentley’s hypertension was caused or contributed to by service in the Royal Australian Navy.

44.     The decision under review is therefore set aside and in substitution thereof the Tribunal finds that the condition of hypertension is accepted as service related and war-caused.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  2 June 2004
Date of Decision  18 June 2004
Counsel for the Applicant         Mr C Webster
Solicitor for the Applicant          Wallace, Wilkinson and Webster
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs