Bernece Winter and Repatriation Commission

[2015] AATA 350

[2015] AATA 350 

Division	Veterans' Appeals Division
File Number	2013/3228
Re	Bernece Winter
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe Dr M Sullivan, Member
Date	21 May 2015
Place	Brisbane

The Tribunal sets aside the decision under review and decides in substitution that the death of the late veteran was war-caused within the meaning of the
Veterans’ Entitlements Act 1986.

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

Senior Member Bernard J McCabe

Dr M Sullivan, Member

CATCHWORDS

WIDOW’S PENSION – veteran’s death from aortic stenosis and/or ischaemic heart disease – hypothesis attributing fatal heart condition(s) to presence of hypertension – development of veteran’s drinking habit – temporal and causal connection to operational service – decision under review set aside – decided in substitution veteran’s death was war-caused.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 120

SECONDARY MATERIALS

Statement of Principles concerning ischaemic heart disease No 89 of 2007
Statement of Principles concerning aortic stenosis No 21 of 2013

Statement of Principles concerning hypertension No 63 of 2013

REASONS FOR DECISION

Senior Member Bernard J McCabe

21 May 2015 

1. Bernece Winter, the applicant, is the widow of Clifford Winter. Mr Winter served in the Australian Army during World War II. He became a heavy drinker. At some point, he developed hypertension and then a heart condition. He died on 29 December 2011.
   Mrs Winter has claimed a widow’s pension under the Veterans’ Entitlements Act 1986 on the basis that his death was war-caused.

2. We are satisfied the late veteran’s death is war-caused for the purposes of the legislation. That means the claim for a widow’s pension is successful. We explain our reasons below.

   Background to the claim

3. Mr Clifford Winter enlisted in the militia on 9 February 1939. He was 18 years of age. He rendered operational service in the Army in the southwest Pacific between
   18 December 1941 and 30 December 1944. There does not seem to be any dispute on the evidence that he became a heavy drinker during his time in the Army.

4. Mrs Winter met the late veteran in 1945. She said in her oral evidence that Mr Winter told her that he and other members of his unit had a still which they used to make alcohol when they were based in New Guinea. She also recalled her husband saying his experience in New Guinea was stressful: she referred to an incident where her husband had said he had been out on patrol and the patrol was strafed by a fighter plane.
   She denied her husband ever suggested he drank simply because his mates did; she said he had a stressful time during war service, and he was always reluctant to talk about his experiences. (The applicant was asked to explain why the Alcohol Questionnaire that was submitted to the Department of Veterans’ Affairs with her original claim suggested he drank because of “mateship” (exhibit 1, p 42). She pointed out she did not complete the questionnaire and insisted his drinking was a response to the stresses associated with his war service.)

5. There is no dispute that the late veteran was a regular drinker after he returned from overseas. Mrs Winter recalled her late husband would stop by the hotel every afternoon following work when he returned to civilian life. She said he would arrive home in time for dinner, smelling of alcohol. He would often slur his words. His preference was to drink beer but he also drank fortified wine. Mrs Winter recounted how the late veteran would acquire flagons of port and drink directly from the bottle. (She said he only used a glass to drink port when they went out together.) Mrs Winter said in her oral evidence that the late veteran consumed around three flagons of port each week over a long period in addition to his daily beer consumption.

6. The applicant says Mr Winter continued this level of consumption until he had a stroke in 1998. The Commission conceded at the hearing that Mr Winter was consuming in excess of 300 g of alcohol each week before the stroke. After his stroke, Mr Winter was unable to get out of the house to access supplies of alcohol. Mrs Winter said in her oral evidence that she attempted to restrict her husband’s supply of alcohol in the years between his stroke and his death in 2011. Her evidence suggests the late veteran was drinking less than 300 g of alcohol per week during that period.

   The kind of death the veteran experienced for the purposes of the claim

7. Mr Winter died on 29 December 2011. The death certificate (reproduced in exhibit 1
   at p 21) lists the causes of death, and duration of those illnesses, as:

   (a)Aortic stenosis (2 years);

   (b)Ischaemic heart disease (10 years); and

   (c)Rectal cancer (2 years).

8. The parties agreed the kind of death Mr Winter experienced for the purposes of the claim was ischaemic heart disease or aortic stenosis.

   The hypothesis

9. The applicant’s hypothesis is that the late veteran died as a consequence of either or both of the heart conditions referred to in the death certificate. The applicant says those conditions were war-caused because they were at least partly attributable to the late veteran’s hypertension, which was, in turn, attributable to his excessive alcohol consumption. The applicant says the veteran’s alcohol consumption was itself attributable to the stress he experienced during the course of his war service.

10. The Commission questioned whether there was material that pointed to each element of this hypothesis. The earliest record of a clinical diagnosis of hypertension appears in 2001. On that basis, most of the Commission’s effort went into questioning whether

    
    

    Mr Winter suffered from hypertension prior to 2001, almost three years after he reduced his alcohol intake to below 300 g per week. That is important because the Statement of Principles concerning hypertension refers to an individual “consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension”. If Mr Winter did not suffer from hypertension until 2001, he would be unable to satisfy the statement of principles and his claim would fail.

11. As it happens, we are satisfied there is material (in the form of the evidence of

    
    

    Dr Kenneth Hossack, a cardiologist, who reviewed the veteran’s medical files) pointing to Mr Winter suffering from hypertension before 1998 when he was still drinking heavily.

12. The Commission also questioned whether there was material pointing to a link between the veteran’s consumption of alcohol and his wartime experiences. The Commission does not seriously dispute there is a temporal connection between the veteran’s service and his heavy drinking: the veteran was 18 when he joined the militia and about 20 when he commenced his war service. There is certainly evidence of the veteran drinking heavily in New Guinea when he and members of his unit built a still and brewed their own alcohol. But a temporal connection may not be sufficient. There must be material that points to a causal connection between the circumstances of service and the alcohol consumption. As it happens, there is evidence to that effect (although there is evidence of other factors, such as mateship, also playing a role) in the form of Mrs Winter’s recollection of the veteran’s claim that he was strafed by a fighter plane, and that he experienced stress when he was responsible for leading patrols comprised of soldiers who were not well-trained: see the applicant’s supplementary statement, reproduced in exhibit 6 at [6]-[9].

    The relevant statements of principle

13. The Statement of Principles concerning ischaemic heart disease is No 89 of 2007
    (as amended), while the Statement of Principles concerning aortic stenosis
    is No 21 of 2013. Both statements refer to the presence of hypertension at the time of the onset of the primary condition. The Statement of Principles concerning hypertension is No 63 of 2013. The statement includes a definition of hypertension at clause 3(b).
    The applicant relies on factor 6(b), which refers to “

    consuming an average of at least

    
    

    300 grams of alcohol per week for at least the six months before the clinical onset of hypertension”.

14. The Commission conceded the late veteran was consuming in excess of 300 g per week of alcohol up until he had a stroke in 1998. Thereafter, it is agreed Mr Winter’s consumption fell below that point. The real issue arises out of the date of onset of hypertension. If the date of onset was 2001, when the medical records confirm Mr Winter was receiving regular anti-hypertensive medication, the evidence will not satisfy the Statement of Principles concerning hypertension. If that is the case, the evidence will also fail to satisfy the statements concerning ischaemic heart disease and aortic stenosis.

    Is the evidence capable of satisfying the relevant statement of principle?

15. If the applicant is to succeed, we must be satisfied the evidence is capable of meeting the requirements of factor 6(b) of the Statement of Principles concerning hypertension.
    We do not engage in fact finding at this juncture: our evaluation of the evidence comes later. But we need to address the Commission’s argument that there was no clear evidence of the late veteran suffering from hypertension before 2001. In order to do that, we need to summarise the medical evidence surrounding his stroke and subsequent hospitalisation in 1998.

16. After Mr Winter’s cerebrovascular accident in February 1998, he was transferred from Kingaroy Hospital to Greenslopes Private Hospital for Rehabilitation under the care of Dr Glenda Powell. She is a gerontologist and was the Director of Geriatric Medicine and Rehabilitation at the hospital. A discharge letter written by Dr Powell, dated

    
    

    17 June 1998, was sent to Mr Winter’s general practitioner, Dr D Turner, at Kingaroy.

    
    

    In that letter, Dr Powell wrote that Mr Winter "denied any previous history of hypertension or of taking any medication for same”. Dr Powell documented Mr Winter’s blood pressure as 130/70 (which is normal) and no antihypertensive medication was prescribed upon his discharge home.

17. At face value, this evidence indicates Mr Winter was not suffering from hypertension in 1998, whilst his alcohol intake remained at high levels in the months preceding his stroke. If that were the extent of the evidence, we could not be satisfied the late veteran experienced hypertension before 2001, which means we could not be satisfied factor 6(b) of the Statement of Principles concerning hypertension was satisfied.

18. Dr Kenneth Hossack, a cardiologist, reviewed Mr Winter’s clinical notes and longitudinal medical history at the request of the applicant. Dr Hossack says it is highly likely that Mr Winter did have persistent hypertension prior to 1998, in spite of

    
    

    Dr Powell’s assessment. His reasons for taking this view are as follows.

19. Dr Hossack explained in his oral evidence that hypertension is an insidious disease and is often only revealed when the patient has a major event such as a myocardial infarction or a cerebrovascular accident. Mr Winter experienced a stroke in February 1998 – a cerebrovascular accident. (We also note Dr Powell commented in the discharge letter of 17 June 1998, “[a] CT scan had shown a left internal capsule infarct.”)

20. Dr Hossack pointed out in his oral evidence on 17 March 2015 that, in general, the presence of an internal capsule bleed is pathognomonic of hypertension.

21. Dr Hossack also reviewed all the blood pressure readings taken from Mr Winter during his Greenslopes Private Hospital admission. Dr Hossack identified a single initial reading of 130/100 on 18 March 1998. This reading is consistent with hypertension and, on reviewing all the 75 recordings taken whilst in Greenslopes Private Hospital, Dr Hossack showed that approximately 27% of the readings of Mr Winter’s blood pressure were elevated. Dr Hossack pointed out – and we accept – the Statement of Principles concerning hypertension requires persistent rather than permanent elevation of blood pressure. Dr Hossack’s oral evidence and the evidence in his supplementary report

    
    

    of 19 January 2015 (reproduced as exhibit 9) suggest the criteria for hypertension in the statement of principles was satisfied.

22. We acknowledge the Commission submits there is no evidence Mr Winter had hypertension before 1998 when he was drinking 300 g of alcohol per week. That submission relies on the Commission’s analysis of the blood pressure readings from when Mr Winter was a patient at Greenslopes in 1998, and the fact the assessing geriatrician did not detect hypertension, nor commence any anti-hypertensive medication. But we do not need to resolve the dispute at this point in the analysis: we merely need to be satisfied there is evidence which “fits” the template in the statement of principles.

    
    

    We are satisfied Dr Hossack’s evidence should be seen in that light.

    Findings of fact

23. It is only at this point that we must weigh up the conflicting evidence and make findings of fact.

24. We are reasonably satisfied the evidence of Dr Hossack establishes Mr Winter was experiencing hypertension, for the purposes of the statement of principles, in 1998.

    
    

    We think his evidence is preferable to the documented conclusions of the geriatrician who saw Mr Winter in 1998 because Dr Hossack:

    ·carefully analysed the blood pressure readings in the medical records and demonstrated there were sufficient readings of elevated blood pressure to justify a diagnosis of hypertension (see his oral evidence and the graph in exhibit 9);

    ·

    explained in the course of his oral evidence that there were more readings of elevated blood pressure towards the end of Mr Winter’s stay at Greenslopes Private Hospital, which was consistent with his clinical experience of

    
    

    newly-admitted patients experiencing lower blood pressure but seeing blood pressure return to a pattern of elevated readings as they resume more activities associated with their pre-admission lifestyle;

    ·pointed out in his oral evidence that there was an inaccuracy in Mr Winter’s social history referred to in Dr Powell’s letter when his alcohol intake was described as “minimal”. This indicates Mr Winter was not a good historian in relation to a matter that would have prompted a closer investigation of his blood pressure;  and

    ·explained Mr Winter’s clinical history in 1998 was consistent with long-standing hypertension and its sequelae.

25. We acknowledge there are gaps in the medical records. As a consequence, there is no clear record of Mr Winter being treated for hypertension prior to 2001. That gap was noted by Mr Winter’s treating general practitioner, Dr C. Isabelle Jonsson-Lear in her letter of 19 May 2014, when she reported that, by 2001, Mr Winter was being prescribed Tritace (an anti­hypertensive) but added:

    …the electronic record can confirm he was taking medication for hypertension on 29^th March, 2001 as a script for Tritace was printed on this date. It is more than likely that he had been taking this medication before this retained electronic record.

26. Ultimately, we are satisfied we should accept Mrs Winter’s case because – as Dr Hossack says – her  husband’s medical history is typical of a man with elevated blood pressure. The anatomical position of Mr Winter's cerebrovascular accident in 1998 is classically associated with hypertension. His subsequent cardiovascular pathologies are also consistent with long-standing hypertension. We should emphasise we are actively persuaded Dr Hossack is right: his careful analysis of the evidence demonstrates it is more likely than not that Mr Winter was experiencing hypertension within the meaning of the relevant statement of principles when he experienced a stroke in 1998 – and when he was still consuming at least 300 g of alcohol per week.   

27. We acknowledge there is limited evidence of the circumstances in which Mr Winter began to drink during the course of his service in the military during World War II.
    There is no reason to doubt he had access to alcohol and would have been drinking reasonably heavily while he was on active service:  there is uncontradicted evidence of a still used to manufacture illicit alcohol. While his drinking questionnaire does not refer to specific stressors associated with his service that prompted his drinking – it mentioned “mateship” in particular as a contributor – it is difficult to know precisely what to make of that evidence given we were unable to question whoever it was that prepared the handwritten answers. We do, however, have the evidence of the applicant who recalled being told of stressful incidents that impacted on Mr Winter, including being strafed by a fighter plane while out on patrol. We do not think there is any sufficient ground for concluding, beyond reasonable doubt, Mr Winter’s commencement of a long-term pattern of heavy drinking was not associated with the circumstances of his service.

    CONCLUSION

28. The decision under review is set aside. We decide in substitution that the death of the late veteran was war-caused within the meaning of the Act. We did not receive submissions from both parties as to the date of effect: we note the applicant submits it is
    30 December 2011. If that date is disputed by the Commission, it has leave to file written submissions within 7 days of the date of these reasons so that the question can be resolved.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Sullivan, Member.

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

Associate

Dated 21 May 2015 

Dates of hearing	18 December 2014 17 March 2015
Counsel for the Applicant	Mr A Harding
Solicitors for the Applicant	Terence O'Connor Solicitor
Advocate for the Respondent	Mr B Williams