Britten and Repatriation Commission - [2001] AATA 591

DECISION AND REASONS FOR DECISION [2001] AATA 591

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1912

VETERANS' APPEALS DIVISION          )
           Re      Joan BRITTEN
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date27 June 2001
PlaceSydney

Decision      The Tribunal sets aside the decision of a delegate of the Repatriation Commission dated 3 August 1998 that determined that the death of Christopher Britten ("the Veteran") was not war-caused, and in substitution therefor, determines that the death of the Veteran was war-caused, and that Joan Britten is entitled to payment of War Widow's pension on and from 20 February 1998.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement – War Widow's pension – veteran suffered from Alzheimer's disease and Parkinson's disease - whether reasonable hypothesis that veteran's death arose from war-caused post traumatic stress disorder – whether post traumatic stress disorder in turn caused veteran to suicide –- whether death was by suicide - whether hypothesis disproved beyond reasonable doubt

Veterans' Entitlements Act 1986: ss120(1), 120(3)

Statement of Principles, Instrument No.15 of 1994 (Post Traumatic Stress Disorder)
Statement of Principles, Instrument No.71 of 1996 (Suicide and Attempted Suicide) as amended by Instrument No.177 of 1996

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is an application for review of a decision of the Repatriation Commission ("the Respondent") dated 3 August 1998 that refused a claim made by Joan Britten ("the Applicant") for a war-widow's pension based on the death of her husband Christopher Britten ("the Veteran"). This decision was affirmed by the Veterans' Review Board ("the VRB") on 30 September 1999. The Applicant lodged an application for review of the decision of the Respondent with this Tribunal on 17 December 1999.
The Tribunal had before it documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Respondent tendered the following documentary evidence:

Reports of Dr Leonard Lee, psychiatrist, dated 10 May 2000, 31 July 2000 and 25 October 2000 and two letters from the Department of Veteran's Affairs to Dr Lee dated 30 June 2000 and 11 April 2000 (exhibit 1);
Letter from Dr Alan Skyring, physician and gastorentrologist, dated 24 February, 2000 (exhibit 2);
Clinical notes of Dr J Barnes (exhibit 3); and
Documents extracted from the Veteran's hospital file (HX294042) from Repatriation General Hospital, Concord (exhibit 4).

The Applicant gave oral evidence at the hearing. The following documentary evidence was tendered on her behalf:

Statement of Joan Britten dated 9 April 2000 (exhibit A);
Statement of Robert Britten dated 4 April 2000 (exhibit B);
Statement of Dr B G E Jeffrey dated 11 April 2000 (exhibit C);
Report of Dr Anthony Dinnen, psychiatrist, dated 1 May 2000 (exhibit D);
Map of area where Veteran's death occurred, marked by the Applicant (exhibit E).

The Veteran was born on 1 November 1914 and served in the Australian Army from 3 November 1939 to 9 November 1945. He spent 3 years on active service in the Middle East, including Tobruk and Syria and thus the whole of his service constitutes operational service. The Veteran died on 21 May 1993. He was seen by a bystander at the kerb of the road. He stepped from the kerb and proceeded across two streams of oncoming traffic alone Pennant Hills Road at about 3.20pm. He crossed the first lane of traffic and then walked into the side of a semi-trailer in the second lane. He sustained head injuries and was dead on arrival at Westmead Hospital. No inquest was held into the Veteran's death. The Police report to the Coroner was that the Veteran suffered from Alzheimer's Disease and Parkinson's disease prior to his death.
The hypothesis put on behalf of the Applicant was that the Veteran's death from a head injury was suicide, and that his suicide had been contributed to by his post-traumatic stress disorder (PTSD) resulting from the stress of his service. The Applicant relied on her accrued right to have this matter determined using the Statements of Principles that were relevant at the time of the primary decision, viz. Instrument No. 15 of 1994 for Post Traumatic Stress Disorder and Instrument No. 71 of 1996 for Suicide and Attempted Suicide as amended by Instrument No.177 of 1996.
The standard of proof to be applied is found in s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal is required to determine that his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that decision. The Tribunal shall be so if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
The Applicant made an informal claim for war widow's pension in a letter dated 10 May 1998 (T9). In an attached letter Dr Bruce Jeffery noted that about two years before the Veteran's death they were playing bridge together, and at the end of the evening the Veteran asked Dr Jeffery if and how he would take his life if that became necessary due to intolerable illness. After Dr Jeffery had revealed his strategy, he noted that the Veteran told him he "would walk under a truck". The Applicant noted in her informal application that she had not known about the discussion between the Veteran and Dr Jeffery until "a chance conversation led to [Dr Jeffery's] revealing statement". From the context of Dr Jeffery's undated letter it would appear that the conversation occurred on 9 May 1998.
The Applicant had made an earlier claim on 1 June 1994 in respect of the Veteran's death. At that time she noted that he had been diagnosed in 1974 to be suffering from Parkinson's disease, Alzheimer's disease and anxiety state. She considered that these conditions had "in some way resulted in his walking on the road and ultimate death"(T6).
the evidence
Applicant
The Applicant said she met the Veteran during 1945, in the last year of his service. In her written statement (exhibit A) she described him as a "reserved, understated, uncomplaining and selfless man". She recounted some incidents that she understood had happened to him while he was in the Middle East. On one occasion during the campaign in Syria his bren gun carrier broke down and he was left alone after a fellow serviceman was sent back to get help. The Veteran spent the entire night with no shelter in a fairly barren area. He told her that he was too scared to lift a finger and remained "motionless" throughout the night until help arrived the next morning. This incident was also documented in a book by Gavin Long titled Australia in the War of 1939-1945 in a chapter entitled "Greece, Crete and Syria" (exhibit B).
On another occasion, the Veteran was moving quickly through the snow and lost his shoe. She recalled him telling her how something happened as he was trying to retrieve his shoe, but she could not remember the details. He fell to the ground and remained there, too scared to retrieve his coat that he had also dropped nearby. When he later retrieved his coat it was stiff with ice. She said her husband thought he would not be alive the next morning.
The Applicant said the Veteran found it difficult to discuss his wartime experiences. He did not want to dwell on "the murderous side of life". She said he started to experience flashbacks and recurring nightmares following his service, but he refused to discuss the content with her. However he said they were extremely ghoulish and unpleasant and he did not want to burden her or leave her "in a perpetual state of anxiety" (exhibit A). She said that sometimes he would tell her that dark forms were bearing down upon him and attacking him, causing him to sometimes jump out of bed. On one occasion the Applicant woke to find the Veteran had removed the bed linen and was standing at the end of the bed in an agitated state. He encouraged her to move and kept telling her "they are coming, they are across the border, we must leave" or words to the effect.
The Applicant gave evidence to the VRB in respect of the Veteran's nightmares in which she said (exhibit 4) –
"Well, he didn't discuss too much about his dreams but he had a lot of jumping around in the night when we were first married…In fact most nights he was like that…"

She said that the "jumping around" lessened a great deal over the years but it did not stop. She said he calmed down a lot when he started taking Valium (exhibit 4, p23).

When war scenes appeared on television she said the Veteran would bury his head in his hands, or would turn his chair away when more explicit war scenes were displayed on the screen, saying it was "a dirty war". She said he avoided places that aroused recollections of the war and would not visit the War Memorial in Canberra until he took his children there when they were aged 12, 8 and 6 years respectively. She said he coped reasonably well with the visit.
The Applicant said the Veteran was always "quite nervy". He was often startled when the telephone rang and would not answer it in the evenings after work. She said he suffered from diarrhoea from the time they were married. She recalled that when he first started practice as a lawyer, after returning from active service, he found the giving of legal advice "terribly worrying". She understood he also found interacting with clients stressful and would return home saying he felt light-headed. She said his 'nerves' did not worsen over the years, but remained the same. There could be periods when things were calm but "it" was always there. She said later he became confident in giving legal advice. However he became more relaxed after he retired, when he could visit their property at Coolah. She said he "thoroughly enjoyed that aspect of his life".
The Applicant said the Veteran never sought specialist psychiatric treatment but she understood his treating doctors considered he had an anxiety problem. She said they did not discuss the possibility of seeing a psychiatrist or a counsellor.
The Applicant said she noticed, in the last few days of the Veteran's life, he kept having "accidents" because he could not see his way to the bathroom or use the commode in the bathroom. His eyesight was failing because of glaucoma. Because of his incontinence at night it had been suggested at Concord Hospital that he use a nappy. He did this for about two nights and found it "hard to take" because "he was a very sensitive man" and "knew exactly what was happening" at the time. She said that he made it clear he did not want to wear the nappy and it was "very stressful" for him. In commenting further on his mood in the last few days, the Applicant said –
I think he was well aware what was lying ahead for us both…he was always very, very conscious of how much it affected the family, in particular me. He was a very thoughtful man and I think he just … that particular time was very bad.
The Veteran was involved in a motor vehicle accident on 7 January 1970 when he suffered concussion with loss of consciousness, possibly for 10 minutes (exhibit 3, p51). He then consulted Dr Stuart Morson on 27 January 1970. In his report Dr Morson noted (exhibit 3, p23) -
Power of concentration is not yet returned to normal nor his power of expression and he remains irritable and jumpy. He has continued to take Valium originally prescribed by Dr Skyring for chronic diarrhoea.
In her oral evidence the Applicant agreed with Dr Morson's observations. The Applicant recalled that the Veteran had been taking Valium ever since it had come on the market. The Applicant could not recall any continuing problems with concentration and expression following the accident, and noted that he did not have any problems with verbal expression until he developed Alzheimer's disease.
The Applicant said the Veteran was diagnosed as having Alzheimer's Disease in the early 1990s. The early effects of that condition were a loss of memory for small things and loss of ability to manipulate things manually. He lost his ability to speak about six months before he died. Prior to that he was highly articulate. He found this new disability "extremely hard to take". However she said he was very lucid in his thinking, and several doctors from Concord Hospital had described him as "insightful" and "aware". She said he was "very conscious of what was happening to the family and what was happening to me".
The Applicant said she was advised by doctors that within two years of having the condition diagnosed the Veteran would no longer be able to recognise her. She believed this was one of the reasons that made him "feel a bit more about doing something". She said she did not know that the Veteran had discussed suicide with Dr Jeffrey. She said around August 1998, whilst at a dinner party with friends, Dr Jeffrey mentioned to her a conversation he had had with the Veteran one night after they had been playing bridge.
The Applicant said the Veteran could not read for about four or five months before he died (because of his failing eyesight). During the day the Veteran did not experience the problems that he had at night. In the daytime he could find the toilet when he needed it. He could walk up and down the stairs. She considered that his language ability had deteriorated much more than his comprehension. He had showed some signs of mental confusion. She noted that although he had been a keen gardener he had shown confusion in the last few years of his life when planting vegetables. He had some problems with mobility such that hand rails were installed on the stairs and in the bathroom. She considered, however, that his Parkinson's disease was only mild at the time he died. He had developed a shuffling gait but he did not use a walking stick.
Despite the difficulties the Veteran experienced the Applicant said he continued to walk for exercise. They had lived in the same house for 50 years, adjacent to a large area of unoccupied land through which he used to walk to gain access to the back streets nearby. She said that during his walks he never walked across the road in front of their house. However she said that area (in front of the house) was well known to him as it was the site of his old school where he also used to live when his father was a teacher there. It is a very busy road, particularly during peak hour from about 3pm onwards.
The Applicant said that at the time of the Veteran's death she was asleep. She said that normally, when she slept of an afternoon the Veteran would go for a walk. They had both gone to rest after lunch and she was not aware of his movements after 2 pm. She expected that he left for his walk between 2 and 3 pm. Sometimes he would leave the house without telling her. However he did not 'wander' – rather his leaving to go for a walk was a deliberate daily activity. He was used to walking in the area where they lived and she considered he was aware of where he was going. He did not get lost when he was walking alone. The Applicant walked with the Veteran at times, but not regularly.
The Applicant said that immediately after the Veteran's death she was unable to think of a reason why he had crossed the road at the front of their house. The likelihood of his having committed suicide did not occur to her until much later when she began to think about how it happened. She could not recall who called to tell her of the Veteran's death, nor could she recall whether she had spoken to a Police Constable two weeks later or had been shown witness statements from the driver of the vehicle.
The Applicant said she found caring for the Veteran to be "fairly hectic and tiring". She also thought life was a "tremendous strain" for him, and that it was more difficult for him than for her. However she did not get any indication from the Veteran that he was contemplating taking his life. She said she was surprised that he had walked onto the road in front of their house, but she was equally surprised to think that he would have taken his life without giving her any warning. She said that the Veteran had become progressively less affectionate in the last few years of his life. She also said they both did most of their grieving in the first year after he had been diagnosed with Alzheimer's disease.
The Applicant was shown clinical notes of Dr Barnes (exhibit 3) and was referred to a handwritten note (at p28), identified by the Applicant to be the Veteran's handwriting. The Applicant could not recall the Veteran having written this page. On this note the Veteran wrote "About fifteen years ago suffered chronic diarrhoea, treated by Dr Skyring who diagnosed nervous strain due to mental conflict and diagnosed Valium. With removal of the conflict the dosage was reduced and finally stopped". As Dr Skyring treated the Veteran in 1974 the Applicant estimated that the note was written about 1989/1990. The Applicant could not recall that Valium was ever stopped. She understood Dr Barnes considered it was much better to continue taking it despite the Veteran's concerns that he would become addicted and that it would do him harm if he came off it. She said she thought the Veteran took Valium in the last two years of his life. The only time he ceased taking it might have been when he was doing the 'trials' in respect of Alzheimer's disease with Professor Broe in 1991
The Applicant said the reference in the Veteran's handwritten note (exhibit 3, p28), to "chronic constipation, lazy bowel" related to medication he was taking at the time that caused constipation.
In a Statutory Declaration sworn on 24 July 1998 the Applicant noted that despite the Veteran's Alzheimer's disease he was considered by his doctors to be "insightful". She said –
I found my husband to be aware of many household problem and showed his dislike for certain personal difficulties, which in some cases distressed him greatly.
To the end he was frequently clearly distressed at the effects of his condition and the strain I was feeling and showing.

other evidence

Dr Alan Skyring, consultant physician and gastroenterologist, provided a report dated 23 April 1998 supporting the Applicant's claim (T9, p58). He noted that the Veteran had consulted him a number of times in 1974 because of abdominal pain and diarrhoea, and marked anxiety and depression. Investigations were negative and Dr Skyring concluded that the Veteran was suffering from severe anxiety and depression that dated back to his war service. Dr Skyring noted suicidal thoughts that the Veteran had put behind him because of his devotion to his family and his endeavours to cope with a busy legal practice. Dr Skyring considered now that the Veteran at that time was suffering from PTSD as a direct consequence of his war service. Dr Skyring advised the Veteran to retire. He said he would not have been surprised to hear that the Veteran had taken his own life.
Dr J F Barnes provided a report dated 15 April 1994 (T4). He noted that the Veteran lost all his close friends on service in the Middle East. He had had a number of traumatic experiences on service, including having his tank crew "wiped out" while he was in hospital for six days. He considered the Veteran had an anxiety state as a result of his war service that caused him to be "jumpy" and have restless nights with occasional nightmares. He had bouts of diarrhoea. He found it difficult to speak on the telephone. Dr Barnes said that when Valium became available the Veteran took it.
Dr Barnes noted that the Veteran developed Parkinson's disease and Alzheimer's disease, that was particularly difficult for someone of his temperament. He said –
The knowledge of what lay ahead made his life a living hell – the inability to communicate with his wife, his family, his friends; whereas once he had been in the St. Pauls College debating team … the inability to perform simple tasks; and the knowledge that deterioration was certain, leading to nursing home care which he abhorred, and death.
…
There is no doubt his anxiety was the result of war service. This aggravated his overall mental ill-health, made him more confused and unable to cope with life; and in all probability made him walk onto the road to die. To prove otherwise would seem impossible.
Dr Jeffery noted in a statement dated 11 April 2000 that although the Veteran had played bridge regularly from about 1970, his interest in playing diminished two to three years before his death (exhibit C).

The Veteran's brother, Robert Britten, provided a written statement dated 4 April 2000 (exhibit B). He noted the incident to which Dr Barnes had referred when the Veteran's tank crew were wiped-out in battle while the Veteran was absent in hospital. Mr Britten also report on two other incidents of which he had knowledge, viz.

During a Syrian campaign, my brother's carried had to survive the gauntlet of enemy artillery whilst simultaneously having to negotiate an exposed section of track around a promontory. During this incident, my brother had only luck or poor enemy shooting to spare him and him troops.
My brother experienced an extremely frightening incident which demanded a display of great courage on his behalf. His carrier had broken down in "no man's land" where he had to spend the whole night alone without possible help or rescue whilst anticipating expected attack. The commanding sergeant of the carrier could not face up to the duty and delegated my brother to remain behind alone with the carrier. My brother stayed alone, awaiting attack, and the possibility of no tomorrow.
I know about the abovementioned service incidents through my parents who would tell me about the contents of letters my brother sent home during service. My parents once showed me a letter in which my brother referred to mankind as "so crook". My brother also disclosed his service experiences to my brother-in-law, Mr Gavin Long (deceased), who was the chief war historian in Canberra. One of the incidents I have mentioned is documented in Gavin Long's book on Australia in the War of 1939-1945 in a chapter titled "Greece, Crete & Syria"…

Dr Dinnen, psychiatrist, provided a medico-legal report dated 1 May 2000 (exhibit D), having interviewed the Applicant. He considered there was sufficient indication in the history to warrant the diagnosis of chronic PTSD. He also noted that the case is complicated by the Veteran's development of Alzheimer's disease and that it was clear that he was aware of a progressive deterioration in his ability to function. The use of nappies in Dr Dinnen's view could have been sufficient to trigger his suicide. Dr Dinnen also considered that Dr Morson's diagnosis in 1970 was consistent with the diagnosis of chronic PTSD notwithstanding that the Veteran had suffered a head injury at the time. Dr Dinnen said –
Dizziness, blackouts, impaired concentration, jumpiness and irritability are all very strong pointers to the present of the chronic psychiatric disorder which his widow asserts was present from the time he returned from the War. Similarly, the progression of gradual improvement after the war is consistent with that diagnosis, as is the deterioration consequent to retirement and increasing disability.

Dr Dinnen opined that the Veteran's death was, on the balance of probabilities, the result of suicide.

Dr Lee, psychiatrist, provided medico-legal reports at the request of the Respondent (exhibit 1). In his report dated 10 May 2000 he opined that it was possible the Veteran only partially met the diagnostic criteria for PTSD. He considered it likely that the Veteran had been exposed to frightening, horrific experiences. He suffered chronic nightmares. He was prescribed Valium from 1960 until he died. Although his anxiety settled when he ceased work his nightmares never fully ceased. He was profoundly depressed and anxious about suffering from Alzheimer's disease. Dr Lee considered it likely that the Veteran suicided, but said it was not entirely clear whether PTSD was the substantial cause of his suicide. He added that this seemed unlikely as he had been much less tense in the period after his retirement and before Alzheimer's disease was diagnosed. Dr Lee considered there was insufficient features to make a clear diagnosis of chronic PTSD. He noted that the Veteran avoided talking about his war activities but he attended Anzac Day ceremonies. He did not have markedly diminished interests in activities, it did not seem that he felt detached or estranged from others, or that he was unable to have loving feelings. Nor did there seem to have been a sense of a foreshortened future. At most Dr Lee considered he may have met section 1 and 3 of criterion (c) (that is, sleep difficulty and an exaggerated startle response). Dr Lee considered the Veteran did not meet the Statement of Principles for Post Traumatic Stress Disorder.
Dr Lee provided a further report dated 31 July 2000, having been provided with the evidence the Applicant gave to the VRB. He then opined –
A reasonable hypothesis can be made on the basis of her evidence that the war affected him emotionally, causing Post-traumatic stress disorder associated with chronic anxiety, insomnia and feelings of revulsion about the war. It does not appear to me that there would have been any other causes for his emotional disturbance.

However Dr Lee also said that if the Veteran had PTSD it was less clear that it contributed to his suicide because there was "no direct evidence that his war experiences were directly troubling him – he was more concerned about his deteriorating cognitive state". He added –

One would also predict that with declining memory, whatever intrusive memories he had of the war would also be diminished, although it may also be argued that someone with declining mental state may be more impaired in their ability to cope with intrusive war-related experiences.

In a subsequent report dated 25 October 2000 Dr Lee acknowledged that he had not taken into account the reports of the Coroner and the Police, or Concord Hospital documents.

Dr David Waugh, physician, reported on 23 August 1989 (exhibit 3, p46) that the Veteran was keen to have some medication to decrease his level of anxiety, and Melleril was prescribed. At that time he was very anxious but was not depressed. At this time the Veteran's loss of memory was becoming difficult for him and the Applicant had noted a marked deterioration in his memory and ability to socialise, but she was most concerned about the effect it was having on his mental state, particularly in exacerbating his anxiety.
submissions
The Applicant
It was submitted for the Applicant that she had a good understanding of the way in which the Veteran was affected by his war service. In addition to the Applicant's evidence, various other persons have also recorded symptoms of the Veteran's anxiety and distress, including Dr Skyring, Dr Barnes, Dr Morson, all contributing to a diagnosis of PTSD.
It was submitted for the Applicant there was no dispute as to the stress caused by the Veteran's war service and the ongoing symptoms of anxiety, nightmares, exaggerated startle and his mental disorder. The Applicant recalled the Veteran making an association between his nightmares and his war service, but he would not discuss them with her. He refused to look at war scenes on television, commenting that it was a "dirty war".
It was submitted that the Veteran's stress about being a legal practitioner was superimposed on a pre-existing condition established by virtue of his war experience. Stress arising from his work does not break the connection with the stress arising from his war service; it merely aggravated the condition.
It was submitted that little weight should be given to the fact that the Veteran was not referred for psychiatric treatment. Various doctors associated with the Veteran formed a view about his psychiatric disability. Dr Dinnen considered that a diagnosis of PTSD could be made, that the Veteran's PTSD was war-caused and on the balance of probabilities the Veteran's death was by suicide.
It was submitted that the Veteran in his latter years regularly took walks and the Applicant had sufficient knowledge of his route to mark this on a map for the Tribunal. The Veteran was familiar with the local environment, having lived in the region all his life and in his home for about 50 years. He knew the road at the front of his home was busy, and thus did not cross it by foot in the manner he did on the day he died. The Veteran had lost his ability to speak and felt frustrated by this. His frustration was worsened by his awareness of his condition. It was submitted there was nothing about the present state of his condition that would indicate he would be found wandering across the road. Indeed reports from eye witnesses give no indication that the Veteran appeared disoriented and aimless when he stepped from the kerb to the oncoming traffic. One witness referred to Veteran's "purposeful walking". It was submitted that this was support for the suicide hypothesis rather than the Veteran being unaware of his environment. The evidence of the witness, Mr Aitken, suggests that the Veteran might have woven his way through stationary vehicles in the first lane.
It was submitted for the Applicant that all of the events leading up to the veteran's death, when combined, supported the hypothesis that the Veteran suicided. The absence of a suicide note made it difficult to piece together the events, but the account the Veteran gave to Dr Jeffrey some years earlier, on how he would end his life, was significant.
It was submitted that the Applicant did not ask for an inquest as she was in a state of shock, and therefore no inquest was held. It was submitted that even though the Tribunal is left with a paucity of evidence on the question of suicide, this does not impede the Tribunal being reasonably satisfied that death was by suicide. It was submitted that in the case of suicide, one would not expect a great deal of evidence, although the lack of probative evidence should not of itself mean that a decision cannot be made.
It was submitted that the veracity of the Applicant's belief that the Veteran's death was a result of suicide was indicated in her oral evidence that "at the time, I really didn't think anything. I didn't think about it one way or the other…as I sat down and pieced things together, that was the only thing that made sense to me". It was submitted that the Applicant's belief that the Veteran's death arose from his stress pre-dated any discussion she had with Dr Jeffrey. Dr Jeffrey was simply backing up a view the Applicant had formed some years earlier.
It was submitted that other evidence before the Tribunal also supported the suicide hypothesis. Firstly, in his report dated 10 May 2000 (exhibit 1) Dr Lee considered it probable that the Veteran died through suicide. In his subsequent reports, despite being provided with other relevant evidence, he maintained his opinion that the probable cause of the Veteran's death was suicide.
In relation to the post traumatic stress disorder hypothesis, Dr Lee opined in his report dated 31 July 2000 (exhibit 1) –
A reasonable hypothesis can be made on the basis of her evidence that the war affected him emotionally, causing post traumatic stress disorder associated with chronic anxiety, insomnia and feelings of revulsion about the war. It does not appear to me that there would have been any other causes for his emotional disturbance.

It was submitted that Dr Lee considered that a reasonable hypothesis can be made that the Veteran suffered from PTSD, thus supporting the Applicant's case.

However it was submitted that the Veteran's PTSD was exacerbated in the last few days of his life because of feelings of indignity arising from the effects of his Alzheimer's disease. This gave him an awareness of "how serious things were becoming". The Applicant's evidence was that she thought the Veteran's agitation was markedly worse.
The Respondent
It was submitted for the Respondent that in relation to the question of suicide, there was nothing in the Veteran's behaviour close to the time of his death that would have indicated to his wife that he had any intention to suicide. Moreover, the Applicant described the Veteran as a selfless and stoic person who did not want to burden others. It was submitted that to suicide outside the front of the house was indeed an act that would impose a burden on the Veteran's wife and on the driver of the vehicle. Even though there may have been some discussion of suicide with Dr Jeffrey, carrying out what was in fact discussed was inconsistent with the Veteran's character.
It was submitted that an alternative interpretation of the events leading to the Veteran's death was that he attempted to cross the road when he thought the traffic had stopped, which is contrary to an intention of suicide. Both witnesses to the accident (T8) noted that the traffic was heavy at the time, which would indicate that the traffic in the first lane had stopped. It was noted that the cars in the first lane had barely missed the Veteran and ultimately he was struck by the semi-trailer. Furthermore, it was submitted that the Veteran's shuffling gait and physical state at the time would support the Respondent's interpretation. The evidence of the eye witness was not consistent with a purposeful attempt of the Veteran to place himself in front of a vehicle.
It was also submitted that the Tribunal could be satisfied beyond reasonable doubt that the Applicant did not have significant symptoms of PTSD. Factor 4(f) of the Statement of Principles for Post Traumatic Stress Disorder refers to "the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning". It was submitted that the Veteran had a successful legal practice for 30 years from which he retired at the age of 60 years. He had a satisfying social life and a very satisfactory marriage. Thus the evidence falls short of satisfying factor 4(f) in the relevant Instrument.
In reply, it was submitted for the Applicant that these issues of social impairment were not put to the Applicant. Furthermore, there was no inference available on the evidence that factor 4(f) was not met. In relation to this criterion, it was submitted for the Applicant that the Veteran had to retire early, he was an anxious man who would not answer the telephone at home. It was submitted that the case put by the Respondent was not sufficient to undercut the Statement of Principle for Post Traumatic Stress Disorder, by simply casting doubt on one of the factors in the diagnostic criteria.
It was submitted for the Respondent that the police report merely documents the facts of the accidents and gives no suggestion that there was a suicide. There was no indication that the Applicant sought an inquiry, and therefore there was no inference of suicide. The Coroner found death due to head injury rather than any other cause (T7).
It was submitted for the Respondent that Dr Skyring's opinion that the Veteran suffered from PTSD was the opinion of a gastroenterologist rather than a psychiatrist. Furthermore, it was an opinion based on a 1974 examination, many years before the Veteran's death. Moreover, the report made no mention of the head injury in 1970 and the symptoms that could be attributed to that injury.
It was submitted for the Respondent that Dr Barnes did not mention the Veteran's head injury in 1970 and the consequences of that. Furthermore, Dr Barnes described Parkinson's disease and Alzheimer's disease "as a terrible combination for anyone but particularly so for one of his temperament and upbringing". It was submitted that the Veteran's Parkinson's disease and in particular, his Alzheimer's disease, was the overwhelming illness involved in this particular case.
It was submitted that on the evidence of Dr Dinnen the Applicant had not been given any indication by the Veteran that he might have been contemplating suicide. The Applicant knew nothing of the Veteran's contemplation and on the day in question she did not notice anything different about him.
The Respondent's representative noted that all its submissions went to the issue of whether the hypothesis was reasonable. It was submitted that the Veteran did not have significant symptoms of PTSD or anxiety or depression referable to PTSD in the few years before his death. Dr Waugh's report (exhibit 3, p44) was cited as evidence that the Veteran did not perform too badly on a mental state examination, indicating that he did not have significant symptoms at that time. It was also submitted that there was evidence in the Concord Hospital notes (exhibit 4, p8) that at the time of a home visit the Veteran's emotional state "appears appropriate". Moreover in the Concord Hospital notes (exhibit 4, p20) it was noted on 3 January 1991 that the Veteran –
Sleeps about 6 hours/night: wakes 3 or 4 am but no rumination or depressive features.

It was submitted for the Respondent that the Veteran's sleep problems arose from his benign prostatic hypertrophy. Moreover it was submitted that he did not meet para 4(f) of the Statement of Principles.

It was submitted in respect of paragraph 4(d) that Dr Lee opined that sudden noise did not unduly startle the Veteran. In relation to his difficulty concentrating, it was submitted that in later years it was his Alzheimer's disease that caused this problem, but prior to that it was the result of his head injury in 1970. His irritability also could be seen to be arising from his head injury. It was submitted that paragraph 4(d) was not met.
It was submitted that the Veteran's Alzheimer's disease was the dominating factor in the last few years of his life and his symptoms are attributable to that condition rather than to his PTSD.
consideration of evidence and findings of fact
The raised hypothesis is that the Veteran died as a result of suicide and that he suffered from PTSD arising from his war service that contributed to his suicide.
Post Traumatic Stress Disorder
The raised facts are that the Veteran served in the Middle East for three years during the Second World War where he experienced horrific trauma and stress that involved the death of other persons and the threat of death for himself. These experiences involved intense fear, helplessness and horror. Hence he meets the definition in the Statement of Principles for Post Traumatic Stress Disorder of having experienced a stressor. and criterion (a) of the definition of post-traumatic stress disorder is met.
On his return to Australia, and frequently thereafter, he experienced recurrent distressing dreams of his service. Criterion (b) is therefore met.
The Veteran avoided discussions about his war experiences, thereby meeting criterion (c)(i). There is conflicting evidence that he had an exaggerated startle response, although the Tribunal finds that that fact is clearly raised in the evidence. Thus, criterion (d)(v) is met. The duration of the symptoms was for more than one month. Indeed, he suffered these symptoms in various severities throughout his life. Therefore, criterion (e) is met.
Criterion (f) requires that the Veteran's disturbance caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The evidence raised is that his disturbance was a distressing factor throughout their marriage. There is no evidence that it caused marital disharmony, but there is evidence that it was an issue that had to be managed. Of greater importance, however, was that he was advised to retire after he consulted a gastroenterologist about his chronic bowel problem. Dr Skyring recommended retirement after negative results were obtained and when he became aware of the history of the Veteran's war experience and the effect it was having on him. The Veteran's chronic bowel problem was considered by Dr Skyring to have arisen from an anxiety condition. In light of Dr Skyring's evidence, the Tribunal is satisfied that criterion (f) is met by the fact that the Veteran's condition caused his retirement.
The Tribunal finds that the Statement of Principles for Post Traumatic Stress Disorder has been met, and notes that a number of doctors have diagnosed, post humously, that the Veteran suffered from PTSD.

The Tribunal finds as a fact that the Veteran suffered from Alzheimer's disease and Parkinson's disease. There is no indication that his PTSD resolved completely with the emergence of those new conditions. The Tribunal notes that as late as 1986 there is evidence in clinical notes that the Veteran sought the prescription of Melleril because of the high level of his anxiety.

Suicide

The evidence of both Dr Lee and Dr Dinnen raised at least the possibility of the Veteran's death having been by suicide. The fact that the death certificate did not show death by suicide, and the fact that there was no Coroner's inquest into the death, does not necessarily detract from raising the fact of death by suicide. The opinion evidence of Dr Lee and Dr Dinnen, two appropriately qualified experts, has raised that fact, and the Tribunal does not consider it to be too tenuous or unreal, and it is consistent with the known facts.
On this issue the Tribunal considers that the submissions made on behalf of the Respondent do not reflect an accurate understanding of the test to be applied in respect of s120(3) of the Act. The advocate in essence appeared to suggest that the Tribunal could pick from amongst the facts raised, those that it preferred. This action is not open to the Tribunal. The raised fact of the suicide does not have to be proved, and indeed it cannot ever be proved. It has also been raised in the medical evidence that the Veteran's PTSD contributed to his suicide. All that the Tribunal has to do at this stage is to consider whether the raised facts meet the Statement of Principles Instrument No.71 of 1996, as amended by Instrument No.177 of 1996, for Suicide or Attempted Suicide.
As the Veteran meets the Statement of Principles for Post Traumatic Stress Disorder, he does, by that fact, also meet factor 5(c) of the Statement of Principles for Suicide or Attempted Suicide.
Having met the relevant Statements of Principles the Tribunal finds that a reasonable hypothesis has been raised pursuant to s120(3) of the Act.
The Tribunal will now consider the test to be applied under s120(1) of the Act. The Tribunal notes that by 1986, when the Veteran was needing Melleril for his high level of anxiety, he was also having difficulty concentrating, suggesting that Alzheimer's disease was manifesting itself at that time. There is evidence that the Veteran was finding it very distressing to have to confront the implications of his deteriorating Alzheimer's disease. There is also evidence that he had said to his friend, Dr Jeffery, that if he suffered from a disease that he found to be intolerable he would "walk under a truck". There is no doubt that there is strong evidence that if the Veteran did suicide then it was because of his distressing Alzheimer's disease. In addition, there is evidence that he had poor eyesight and a shuffling and unsteady gait from his Parkinson's disease, that could have been a factor going to accidental death rather than death by suicide.
Having considered all the evidence, the Tribunal finds that there is evidence to suggest that the Veteran's death was accidental, and if it was by suicide, that it was because of distress arising from Alzheimer's disease. However, none of that evidence is sufficiently compelling to dispel beyond reasonable doubt the hypothesis raised. The evidence is that the Veteran had been chronically plagued by PTSD arising from his war service. He had experienced a very difficult time during the war. He had admitted to suicidal thoughts some years before his death, while he was still at work, because of his PTSD.
While there were more pressing concerns for the Veteran at the time of his death, arising from his Alzheimer's disease, the evidence is that that was superimposed on his chronic PTSD. The hypothesis is that PTSD contributed to his death. It does not have to be a large factor in his death, as long as it is more than de minimus. In order for the Veteran's death to be found not to be war-caused the evidence would have to satisfy the Tribunal beyond reasonable doubt that PTSD was not a factor in the Veteran's death. There is no evidence that achieves that outcome.
Therefore, the Tribunal determines that the Veteran's death was war-caused, and hence the Applicant is entitled to be paid War Widow's pension. The effective date from which pension is to be paid is 20 February 1998, being a date not more than three months before she lodged the informal claim, that led to the decision under review.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  26 October 2000
Date of Decision  27 June 2001
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant         Dibbs Crowther & Osborne
Representative for the Respondent     Mr P Godwin, Dept. of Veterans' Affairs