Cooper and Repatriation Commission - [2000] AATA 936

DECISION AND REASONS FOR DECISION [2000] AATA 936

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/84

VETERANS' APPEALS DIVISION       )
           Re      ELIZABETH COOPER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member Dr JB Morley, Member Captain ET Keane, Member

Date26 October 2000
PlaceBrisbane

Decision The Tribunal varies the decision of the Repatriation Commission dated 24 January 1996 by re-diagnosing the veteran's rejected conditions of Alzheimer's Disease and Parkinson's Disease to Alcohol-induced Dementia and that that condition be accepted as war-caused. The Tribunal remits the matter to the respondent for assessment of pension.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – war-caused disease – whether Tribunal should re-diagnose the claimed condition – effect of alcohol on dementia.

Veterans' Entitlements Act 1986 s 13

REASONS FOR DECISION

26 October 2000 Deputy President DP Breen, Presidential Member
Dr JB Morley, Member Captain ET Keane, Member

This is a review of a decision by a delegate of the Repatriation Commission dated 24 January 1996 rejecting a claim by Kevin Joseph Cooper for Alzheimer's Disease and Parkinson's Disease on the basis that they were not war-caused. This decision was affirmed by the Veterans' Review Board on 26 October 1998. The application to this Tribunal was brought by Elizabeth Cooper, as the late veteran's legal personal representative.
This matter was heard in Brisbane on 5 October 2000 before a Tribunal as constituted above. Mr P Johns, Solicitor of Messrs Gilshenan and Luton represented the applicant and Mr J Kelly, a Departmental Advocate, represented the respondent Commission.
Mrs Cooper and Dr R Goodwin gave oral evidence at the hearing. The following documents were also taken into evidence:

Exhibit 1 "T" Documents
Exhibit 1A Statement of Principles No 5 of 1994
Exhibit 2 Report of Dr R Goodwin dated 11.3.00
Exhibit 3 Report of Dr R Goodwin dated 20.8.00
Exhibit 4 Death Certificate of Kevin Joseph Cooper
Exhibit 5 Print-out from Naval History Web Page
Exhibit 6 Statement of applicant's children dated 5.2.98
Exhibit 7 Extract of Harrison's Principles of Internal Medicine Vol 2 13th Ed.
Exhibit 8 Statement of Elizabeth Cooper dated 12.3.99
Exhibit 9 Report of Dr R Boyle dated 2.6.94
Exhibit 10 Report of Dr CK Davis dated 18.2.94
Exhibit 11 Report of Dr S Roberts
Exhibit 12 Aged Care Assessment Report dated 16.2.94
Exhibit 13 Report of Dr M Dent, Psychologist, Prince Charles Hospital
Exhibit 14 Report of Dr D Mitchell dated 17.1.96

The late veteran, Kevin Joseph Cooper, was born on 10 September 1920 and served in the Royal Australian Navy from 8 February 1943 until 19 November 1946. He has two periods of operational service from February 1943 to January 1946 and June 1946 to November 1946. In January 1948 he enlisted in the Royal Australian Air Force and was discharged in February 1964 with periods of operational service in 1953, 1955 and 1958. The veteran died on 11 July 1996 and was receiving pension at 40% of the General Rate. Before his death, the veteran lodged a claim with the Repatriation Commission for entitlement to pension for the conditions said in the claim to be Alzheimer's Disease and Parkinson's Disease.
For a condition to be accepted under Section 13 of the Veterans' Entitlements Act 1986 it must be shown that it was service-related. A condition will only be accepted as service-related if the veteran satisfies the relevant Statement of Principles. As the veteran has operational service, the Tribunal must be satisfied that the relation to service forms a reasonable hypothesis.
Neither of the conditions of Alzheimer's Disease nor Parkinson's Disease were argued before the Tribunal. As such, the Tribunal agrees with the decision of the Repatriation Commission that the veteran did not satisfy the applicable Statement of Principles.
It was argued before the Tribunal, as it had been before the Veterans' Review Board, that there had been a mis-diagnosis and that Dementia, as listed on the death certificate, was the actual cause of death. It was argued that the dementia was caused by alcoholism which was caused, and then aggravated by, the veteran's service. The applicable Statement of Principles is Instrument No 5 of 1994 – Psychoactive Substance Abuse or Dependence.
Mrs Cooper gave evidence that her husband had come from a strict religious family where alcohol was not permitted. He joined the Navy in 1943 and moved away from home. Spending time with other sailors, away from the restrictions his family had imposed on him, he soon began drinking alcohol on a regular basis.
Mrs Cooper told the Tribunal of two incidents during her husband's war service which had caused him a great deal of distress and resulted in an increase in his drinking. The first occurred whilst on the HMAS Shropshire. The ship came under attack and the veteran was manning one of the guns. A good friend of his was standing next to him and got blown apart. Mr Cooper had to help carry the body parts down to the infirmary/morgue. The second incident occurred whilst he was serving in the Air Force at Amberley when a Lancaster fighter plane crashed on the tarmac. Mr Cooper had to help in the rescue attempt. As he tried to pull one person out, the skin on that person's arms came off in his hands. Mrs Cooper said that even years after her husband had left the Service he would still have nightmares of these incidents.
After his final discharge in 1964, the veteran and Mrs Cooper went into business for themselves. The veteran continued drinking heavily during this time although mainly in the afternoons and evenings. Mrs Cooper estimated he drank at least 12 beers a day, although it could have been more, as she never went to the pub with him. The veteran's adult children provided a statement attesting to his excessive drinking habits.
Mrs Cooper gave evidence that the veteran had always been highly strung since she married him in 1947. However, she said his behaviour became more erratic after they went into business. He was very restless and would insist that they sell their business and move on, on the basis of some fanciful notion that business was about to go bad. He did this at regular intervals. Once they retired and took up a position as caretakers of a farm, he became quite forgetful, anxious and unable to cope in everyday situations. In late 1993 the veteran became quite sick. Mrs Cooper said at this stage she refused to supply him with alcohol and took him to a health retreat in the hope of helping him to get better. Early in 1994 he was admitted to hospital and a diagnosis of Alzheimer's Disease and Parkinson's Disease was eventually made. The veteran remained under medical care until his death in 1996.
Dr Goodwin initially provided the Tribunal with a report stating that the veteran's death was not war-caused. However, his attention was then drawn to Mrs Cooper's statement and the possibility that alcohol was a contributing factor in the veteran's dementia. He replied that alcohol was a contributing factor in 20% of dementia cases.
Under cross-examination, Dr Goodwin stated that he had given insufficient weight to Mrs Cooper's statement when he made his report. He told the Tribunal that a diagnosis of Alzheimer's Disease was often made where there was evidence of dementia with no obvious cause. He said that a diagnosis of Parkinson's Disease was probably made as the veteran had a tremor, although this could have been as a result of chronic alcoholism.
Dr Goodwin was of the view that the diagnoses of Alzheimer's and Parkinson's Diseases were incorrect and that the history was consistent with chronic alcoholism leading to terminal, prolonged and chronic dementia. He was of the opinion that, given the history of alcohol dependence, there was a strong probability that alcohol had played a part in the veteran's dementia.
It is the Tribunal's view that the veteran should be re-diagnosed as having suffered from dementia and that this should be the basis for the claim. The Tribunal accepts that by the time the veteran was seen by doctors in 1994, his wife had withheld alcohol from him for some months. As such, the doctors would not have noticed any symptoms of withdrawal to put them on alert that he suffered from chronic alcoholism. The Tribunal further accepts that it is unlikely that either the veteran or his wife would have told the doctors of his drinking habits.
There is sufficient evidence on which to base a reasonable hypothesis that the veteran suffered from alcoholism which led to dementia which caused his death. The veteran's alcohol dependence began once he joined the Navy and was seriously exacerbated by at least two incidents during service. As such, the Statement of Principles for psychoactive substance abuse is satisfied and the death from dementia is service-related.
Although this condition and its cause were not considered by the Repatriation Commission, it was argued before the Veterans' Review Board who rejected them on the evidence before them. As such the Tribunal has jurisdiction to consider the condition of dementia as caused by psychoactive substance abuse. The evidence before the Tribunal explained the earlier medical evidence and made it clear that the claim should be accepted.
Therefore, the Tribunal varies the decision under review by re-diagnosing the rejected conditions of Alzheimer's Disease and Parkinson's Disease to alcohol- induced dementia and that that condition be accepted as war-caused. The Tribunal remits the matter to the respondent for assessment of pension.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Dr JB Morley and Captain ET Keane, Members.
Signed:
  Associate
Date/s of Hearing  5.10.00
Date of Decision  26.10.00
Solicitor for the Applicant         Mr P Johns, Messrs Gilshenan and Luton
Solicitor for the Respondent    Mr J Kelly, Departmental Advocate