Betty Smith and Repatriation Commission
[2014] AATA 500
[2014] AATA 500
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4388
Re
Betty Smith
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 22 July 2014 Place Sydney The decision under review is affirmed.
.........................[sgd]...............................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – whether veteran’s service led to death – complex hypothesis - decision under review affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth), ss 8(1), 12, 120(1), 120(3), 120(4), 120A
CASES
Allison and Repatriation Commission [2014] AATA 48
East v Repatriation Commission [1987] FCR 517
McKenna v Repatriation Commission [1999] FCA 323Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder, No 101 of 2007, factor 6(a)
Statement of Principles concerning Hypertension, No 35 of 2003, factor 6(b)
Statement of Principles concerning Ischaemic Heart Disease, No 89 of 2007, factors 6(a), 6(o)
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
22 July 2014
The Applicant, Mrs Betty Smith, seeks review of a decision of the Veterans Review Board, dated 13 August 2012, refusing her application for a war widow’s pension on the basis that the death of her husband Mr Victor Smith was not war-caused.
FACTUAL BACKGROUND
Mr Smith had operational war service in New Guinea between 14 February 1945 and 13 December 1945. He was a trained motor mechanic. After discharge he conducted his own successful cleaning business until he sold it and continued as a manager until retirement. He died on 22 December 2010, aged 87 years, with the main cause of death given as Ischaemic Heart Disease (“IHD”).
The Applicant had no direct evidence of Mr Smith being involved in direct enemy action. Certainly Japanese stragglers were still active in 1945 in areas of New Guinea and he could have been subjected to major stressors.
After discharge, the deceased resumed his sport of competitive cycling, and was training in hopes of making the Australian team for the 1952 Helsinki Olympic Games, when he fell and suffered an injury which ended his racing career.
There was evidence of post-war erratic behaviour and excessive alcohol use from his two daughters, but the time and reliability of those observations were in issue.
LEGISLATIVE FRAMEWORK
By s 13 of the Act, Mrs Smith will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1). As her case relies on her husband’s operational service, the standard of reasonable hypothesis applies. That means that I must determine that Mr Smith’s death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I shall be so satisfied if the material before me does not raise a reasonable hypothesis connecting his death with his service: ss 120(1) and 120(3).
Whether a hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
The approach to be taken in applying these provisions is set out in Repatriation Commission v Deledio (1998) 83 FCR 82 and involves a process by which, in this case, I must:
(i)determine whether all of the material points to a hypothesis connecting Mr Smith’s death with the circumstances of his service;
(ii)if so, ascertain whether there is a relevant SOP in force;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it is “upheld” in the sense that it is consistent with the “template” in the SOP; and then
(iv)consider whether I am satisfied, beyond reasonable doubt, that Mr Smith’s death was not war-caused.
It is only at the fourth stage of the process that fact-finding is permitted.
In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
LEGAL BACKGROUND
The Applicant’s case was that the factual material points to a hypothesis connecting the IHD to the circumstances of Mr Smith’s service. In this matter it is not a direct connection but a “complex hypothesis”, involving a chain of health conditions leading up to the IHD. It was necessary to show that each of these links in the chain was a reasonable hypothesis supported by a relevant Statement of Principles (SoP) under the Veterans Entitlement Act 1986 (Cth) (“VE Act”) as amended.
The Applicant submitted that there were a number of alternative paths of causation which may be summarised:
(a)war service – PTSD – hypertension – IHD
(b)war service – anxiety – hypertension – IHD
(c)war service – hypertension – IHD
The first path suggested was abandoned during the hearing for reasons which will be explained.
The parties accepted that the ‘kind of death’ suffered by Mr Smith was IHD. It is convenient to work backwards from that condition to examine the possible connections with war service.
ISCHAEMIC HEART DISEASE
IHD is the subject of a SoP No 89 of 2007. One factor which must, as a minimum, exist before a reasonable hypothesis connecting IHD with service is:
“6(a) having hypertension before the clinical onset of ischaemic heart disease”.
It was accepted by the medical witnesses that the deceased had chronic sustained elevation of blood pressure, sufficient to justify a diagnosis of hypertension only from about 1974, but this was well before a diagnosis of IHD. Thus the SoP was satisfied, but in this case the real issues lay in the earlier parts of the alleged chain of causation.
HYPERTENSION
The cardiological evidence from Professor O’Rourke and Associate Professor Haber was that they were satisfied that the deceased was first found to be hypertensive in about 1974. One factor that, as a minimum, must exist before a reasonable hypothesis can be said to exist connecting hypertension with service is in the SoP for Hypertension No 35 of 2003:
“6(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension”
Each doctor accepted that this level had been exceeded for the required period on the basis of the evidence of the daughters and a report of cardiologist Dr Yiannikas. This meant that the factor was established.
A further possible factor was:
“6(o) having a clinically significant psychiatric disorder from the specified list before the clinical on set of hypertension”
The ‘specified list’ in the SoP did not include ‘Anxiety Disorder Not Otherwise Specified’, which was the only disorder supported by any evidence. It was also a requirement of that list that the disorder was of ‘sufficient severity to warrant ongoing management’, but there was no evidence that Mr Smith had ever sought or been recommended treatment. This meant that Factor 6(o) did not apply.
Additionally, clause 5 of the SoP required that the relevant Factor “must be related to the relevant service rendered by the person”. Each specialist remarked that a clinical onset in 1974 of hypertension in a man then aged 51 could not be causally related to war service 29 years before without any reliable linking factors. Mere temporal relation is not sufficient where the connection appears to be tenuous and remote (Allison and Repatriation Commission [2014] AATA 48 at [30]).
ANXIETY
Two psychiatrists provided reports and gave concurrent evidence in the case. They disagreed as to whether the deceased had any psychiatric condition after his war service. Certainly he had not been diagnosed with any such condition by the doctors he saw in his lifetime.
The evidence about the state of mind and behaviour of the deceased came from the family alone. Mrs Smith lacked capacity to give evidence. She provided an ‘alcohol statement’ in 2010 concerning the drinking habits of the deceased. She said that he had begun drinking alcohol only during army service, and he had averaged about two middies of beer daily, but that in the early 1960’s there was an obvious increase due to business worries.
The only other evidence came from the two daughters of the deceased. The older daughter was born in November 1950, and she gave a harrowing account of the deceased’s sleep disturbances, rages, heavy drinking and violence from as early as she could remember. She agreed that details of events and amounts of alcohol were not clear for her until at least the late 1950s or early 1960s.
The younger daughter born in 1956 gave a broadly similar account, recalling her father’s excessive drinking, abuse and disturbed behaviour. Again, her memories were unclear until she had reached school age at least.
Dr Dinnen’s opinion was that the deceased had suffered from ‘Anxiety Disorder Not Otherwise Specified’ (“ADNOS”). This is a curious classification, meaning a psychiatric disorder with anxiety prominent as a symptom but without meeting the criteria for other anxiety-based disorders. This disorder is included in the Anxiety SoP No 101 of 2007. The most relevant factor that as a minimum must be found to exist before this disorder can be said to be connected to war service is set out as:
“6(a)(i) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder”
or 6(a)(ii) the same requirement except with a ‘1B stressor’.
In the circumstances of this case it did not matter whether a stressor was 1A or 1B, because the crucial factor was that there was no reliable evidence that the deceased had suffered the onset of such a disorder “within the five years” after war service. Dr Dinnen said of the daughters’ evidence that he would “want them to be 10 or 12 to be reliable” on such matters, while the other psychiatrist, Dr Roberts, could not accept that their memories could be relied upon before being at least seven or eight years of age. While it appeared that the behaviour and drinking of the deceased grew worse in the 1960s, that was well outside the period of five years from the end of his war service experiences, and there was no reliable evidence to support an onset in that initial period. Dr Roberts did not accept that the deceased’s drinking was self-medicating and a response to anxiety. He believed that there was no evidence of ‘prominent anxiety’, as required by the SoP, and found the evidence of a man who was high-functioning in sport and business, maintained a family and never presented to doctors with signs of a psychiatric disorder to be quite inconsistent with a diagnosis of ADNOS.
Dr Dinnen also considered but rejected a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) saying that this would be ‘a stretch’ beyond the available evidence.
Any hypothesis that service-related anxiety led to alcohol overuse, which then led to hypertension, falls down if there is no valid hypothesis for the relationship between service and anxiety falling within the SoP.
CONCLUSION
The test to be applied to the factual material under the VE Act is to be applied to each of the sub-hypotheses in a complex hypothesis (McKenna v Repatriation Commission [1999] FCA 323 at [20]) “A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts”. This is a case of a complex hypothesis because there is no direct single hypothesis linking IHD with war service.
The Applicant’s attempted chain of hypotheses commences with the only psychiatric diagnosis made by any of the specialists – Anxiety Disorder Not Otherwise Specified. However the SoP requires clinical onset within five years of the service stressor. No reliable evidence of that onset within that time was tendered. Indeed, the evidence was silent about that period in the infancy of the older daughter and before the birth of the younger daughter, except that the deceased engaged in vigorous physical sport and began establishing his business. This means that the hypothesis could not be sustained.
As to hypertension, there was no link established through anxiety within the terms of the hypertension SoP. There was a possible link through alcohol however, the hypertension was found first in 1974. The relevant alcohol consumption for the SoP was in early 1974 – 29 years after service. There is no connection causally linking the service and the alcohol. In circumstances such as this the hypothesis is too tenuous and remote. It points to a temporal rather than causative connection to operational service” (Allison and Repatriation Commission [2014] AATA 48 at [31]). The hypothesis should be “more than a possibility, not fanciful or unreal consistent with the known facts” (East v Repatriation Commission [1987] FCR 517). I conclude that this sub-hypothesis is also too remote and tenuous.
The complex hypotheses put forward for the Applicant are not sustainable because the sub-hypotheses linking service and anxiety, anxiety and hypertension and alcohol and hypertension cannot be supported. I am satisfied that the hypertension and IHD may be connected but the other essential links in the causal chain are absent.
DECISION
The decision under review is affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member .......................................................................
Associate
Dated 22 July 2014
Dates of hearing 11 February, 8 and 9 May 2014 Counsel for the Applicant Mr M Davies Solicitors for the Applicant Kemp & Co Lawyers Advocate for the Respondent Mr T O'Reilly Solicitors for the Respondent Repatriation Commission
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