Corbett and Repatriation Commission - [2001] AATA 498

DECISION AND REASONS FOR DECISION [2001] AATA 498

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1794

VETERAN'S APPEALS DIVISION       )
           Re      ELAINE BETTY CORBETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date7 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefore determines that the death of the late veteran was war caused and that the Applicant is entitled to payment of a War Widow's Pension with the date of effect being 7 March 1999.

(Sgd) Dr J D Campbell
Member
CATCHWORDS
Veterans' entitlement - death of veteran - ischaemic heart disease - smoking - alcohol - hypertension - whether death war caused - widows pension

Veterans' Entitlements Act 1986

Sayer and Repatriation Commission (1999) AATA 524
Wade and Repatriation Commission (AAT 13092, 14 July 1998)
Repatriation Commission v Hughes (1990) 13 AAR 34

REASONS FOR DECISION

Dr J D Campbell

In this application Mrs Corbett ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 13 April 1999 that determined that the death of her late husband Mr Geoffrey Corbett was not related to service. This decision was reviewed and affirmed by the Veterans' Review Board ("VRB") in a decision dated 14 October 1999.
A hearing was held before the Tribunal on 13 October 2000 at which the Applicant was represented by Mr Vindin of Counsel and the Respondent by Mr Wallis, a solicitor from The Department of Veterans' Affairs. The Applicant presented oral evidence prior to the matter being adjourned for both parties to obtain further medical reports. A resumed hearing was held on 19 February 2001, with Mr Modder, a solicitor from the Department of Veterans' Affairs representing the Respondent.

The following material was placed into evidence before the Tribunal:
Exhibit No     Description    Date
T1-T15 pp1-61 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Medical Report of Dr Miller 22 May 2000
A2      Medical Report of Dr Gertler         26 June 2000
A3      Statement of Mrs Corbett   22 March 2000
A4      Statement of Mrs Corbett            16 June 2000
A5      Statement of Mr Hays        14 June 2000
A6      Statement of Mr Cowley     19 July 2000
A7      Clinical notes of Dr Romero re Mr Corbett
A8      Applicants' Statement of Facts and Contentions          25 July 2000
A9      Supplementary Medical Report of Dr Miller       11 February 2001
A10     Applicants' Amended Statement of Facts and Contentions     15 February 2001
R1      Historical Report of Lt Colonel Conant    12 October 2000
R2      Respondents' Statement of Facts and Contentions     11 October 2000
R3      Medical Report of Dr Richards, with last two paragraphs deleted      22 January 2001

Legislation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 5AB, 6,7,8,9,13,119,120,196B.
The relevant statements of principles are as follows:

Statement of Principles Instrument No 81 of 1998 concerning Ischaemic Heart Disease;
Statement of Principles Instrument No 77 of 1998 concerning Psychoactive Substance Abuse or Dependence;
Statement of Principles Instrument No 26 of 1999 concerning hypertension.

Issues

The relevant issue in this matter is whether the death of the late veteran, Mr G Corbett, was related to his service.
Background and File Evidence
The late veteran rendered eligible war service but not operational service in World War II from 11 June 1944 to 27 May 1946. At the time of the veteran's death on 6 March 1999, the Respondent had accepted as a war caused disability sensory- neural deafness. Cause of the late veteran's death was nominated as acute myocardial infarct, with the presence of ischaemic heart disease for six months.
The Applicant lodged an application for war widow's pension with the Respondent on 8 April 1999. In this application, the Applicant described the late veteran as a very heavy smoker and drinker, having been a non-smoker and a non-drinker prior to enlistment. (T4) In a smoking questionnaire accompanying the application, the Applicant stated that the late veteran commenced smoking shortly after enlistment in 1941; that he smoked cigarettes or two ounces of tobacco per day and that he commenced smoking because of peer pressure and ready availability of tobacco. Further the Applicant indicated that the late veteran stopped smoking some "20 years ago on doctors orders" (T6). In an accompanying alcohol questionnaire the Applicant stated that the late veteran started drinking alcohol shortly after enlistment in 1941 because of peer pressure and stress of service, and that between 1941-46 he was a heavy drinker. The Applicant stated that during the period 1946 to 1994, the late veteran was a heavy drinker, consuming two to four stubbies plus wine and beer at the RSL Club, with the duration of consumption not defined. The late veteran is stated to have ceased drinking alcohol in 1994 on doctors' orders. (T6)
The Applicant's claim was rejected by the Respondent on 13 April 1999, (T7). In a request dated 5 May 1999 for review by the VRB, the Applicant stated that her husband "ceased smoking in 1980 which was basically true but he often took a cigarette in certain circumstances up until and nearing his death, because he had cut it down so much he always said he had stopped smoking" (T8). The VRB affirmed the previous decision on 14 October 1999 (T13).
Applicant's Evidence
The Applicant informed the Tribunal that she met her husband some two months after discharge in 1946, and his family some four to five months later. At that time he did not talk much about his war experiences, but did state that he did not smoke before he enlisted. The Applicant stated that her husband had "a cigarette in his fingers from the day she met him" and that neither he nor his brother smoked prior to the Army. The Applicant said that the veteran's mother did not like her sons smoking and that she did not condone it, and when they came home on leave, they would have to go outside to smoke. The Applicant further stated that when she first met him he would smoke as much as he could get, together with smoking a pipe, which he had acquired while in the army. Further, after the late veteran joined the army, his father used to collect his tobacco ration and forward it to his sons.
The Applicant further stated that her late husband cut down his cigarette smoking to six a day in 1987 and that he more or less stopped some 18 months prior to his death, because of a history of some chest pain, for which he received much medication.
The Applicant also described some particular events which were stressful for her late husband during his period of service, namely:
(a) when exercising with LCM'S at Trinity Bay to the north of Cairns, there were young soldiers involved who could not swim and when laden with full packs they became anxious and cried. This the Applicant reports as upsetting her late husband, as he felt they should have been taught to swim, before being involved in such beach landing exercises;
(b) the death in a motor bike accident during service of Leslie Clack, who served with the late veteran in his early army career; and
(c) experiences in Broome which he did not talk about to any great extent.
In response to questions in cross examination, the Applicant confirmed that during his period of heavy smoking he would smoke 40 a day; that he would enjoy an Anzac Day reunion at home; and that he never talked about his Western Australian experiences or about experiences in Newcastle and was much more interested in talking about his children. Further when he did tell her things about Dallas he was upset and stressed, that "he was not a man to talk about his responsibility, he just accepted it" and the episode with the landing barges did not make him smoke more.
Statement of the Applicant
In relation to the issue of when her late husband stopped smoking, the Applicant detailed the following in her statement of 16 June 2000:
". . .
9.        I refer to folio 30 of the T-documents. I note that I stated on this questionnaire that my husband ceased smoking in approximately 1979 on doctor's orders. This is incorrect. In 1979, my husband's doctor did tell him that he had to quit as his health was being affected by his habit. He told the doctor that he would quit but he never gave the habit away. My husband kept on smoking especially when he was drinking. He did try very hard to give away his smoking addiction but found it too hard and therefore, he cut down quite significantly and was smoking from this time at least twenty cigarettes per day.
10.      I filled out the smoking questionnaire only one month after my husband died and was very stressed when I was filling it out. My husband had cut down his smoking but had certainly not ceased. I felt that if I had not stated that he quit smoking on the doctor's advice, that I would be being disloyal to my husband as he felt very bad and also stressed that he had not stopped as the doctor advised him. He used to tell everyone he had ceased due to this guilty feeling, however, he had only cut down the number of cigarettes he was smoking. I think that part of my husband's embarrassment and guilt in this regard was because I ceased smoking on the day that he was advised to quit in an effort to try and encourage him to do so also. I remember that he did not believe that I would do it and so I went out into the back yard and threw away all my cigarettes and told him that if I could do it, then he could too. I know he tried very hard but he found it too difficult to quit the habit altogether.
11.      My husband's smoking habit changed again in approximately 1987 when he was diagnosed with pernicious anaemia. He was very frightened about the deterioration in his health and therefore, cut down on the number of cigarettes he was smoking to approximately six per day. He knew he should have given up but could not cut the habit out entirely.
12.      My husband ceased smoking approximately one and a half years before he died. I think he recognised that he could no longer take his health for granted and his deteriorating health was scaring him.
. . . " (Exhibit A4)
In relation to her late husband's alcohol consumption the Applicant also detailed her understanding in her statement dated 22 March 2000.
". . .
13.      When I first met my husband at a dance, he was on a night out with his mates after just having been discharged and was very drunk.
14.      I know from my husband's mother that he was not permitted to drink alcohol at home prior to his enlistment.
15.      I believe that my husband began drinking whilst in the Army in 1941.
16.      My husband told me that he began drinking to fit in and be one of the boys as everybody else was drinking. He did not, however, tell me about any particular service experiences that were stressful to him.
17.      My husband did not like to talk to me about his particular service experiences. I know that he spoke to his male colleagues at reunions he attended. Women were generally not included in these war conversations.
18.      All of my husband's friends were heavy drinkers and they went to the RSL Club approximately two to three times per week. After having drinks with the boys, he would come home obviously intoxicated. My husband was normally a quiet man but whenever he drank, he became very talkative and I noticed he had slurred speech.
19.      My husband also drank at home each night. He would drink stubbies of beer and sometimes wine. He loved to drink port.
20.      My husband maintained this drinking pattern up until 1994 when he ceased drinking alcohol.
21.      I regularly warned my husband to stop drinking. We would often sit down to discuss the matter and I would try and convince him. He would just say to me, 'That's life Betty'.
. . ." (Exhibit A4)

Statement of Mr Hays

In his statement dated 14 June 2000 Mr Hays, a war time colleague of the late veteran detailed circumstances of the army service which he and the late veteran experienced and which were stressful, namely:
(a) travelling in preparedness for an anticipated posting to Burma;
(b) activities at Trinity Bay involving clearance of thick scrub in anticipation of enemy attack and/or infiltration;
(c) serving in Newcastle at a time of Japanese bombing and submarine activity; and
(d) being informed of the death of their colleague, Mr Clack. (Exhibit A7)

Report of Lt Colonel Conant

In his report dated 12 October 2000, Lt Col Conant of Write Way Research Service detailed the following:
(a) no record could be found of any Australian unit or formation being prepared or sent to fight in the Burma campaigns;
(b) Trinity Bay is approximately 100 miles north of Cairns; that Mr Hay's description of activities at Trinity Bay did not seem to make sense; and that anticipation of enemy attacks in that area were similar to other Northern Australian concerns;
(c) that Newcastle was shelled by a Japanese submarine in the early morning of 8 June 1942; and
(d) that Sergeant Clack died from injuries in Australia on 26 March 1944. (Exhibit R1).

Medical Evidence
Dr Miller

Dr Miller, a consultant physician, in his report dated 22 May 2000, detailed the following smoking and alcohol history as told to him by the late veteran's wife.
" Smoking History:
Mr Corbett commenced smoking during his army service, smoking about 40 cigarettes a day. Mrs Corbett wrote, in the questionnaire on page 30, in 1999, that he ceased smoking 20 years ago but she told me that this was not true. She told me that her husband had attempted to cease smoking, on doctor's advice, but that he had continued to smoke at about twenty cigarettes a day, but only when he was drinking, until about 1987 when his pernicious anaemia was diagnosed. After this date he still continued smoking, at about six cigarettes a day, until eighteen months before he died.
I asked her why, in April 1999, she had made the incorrect answer to the Question 5: "Did the veteran ever stop smoking permanently?". Mrs Corbett told me that she had written that only a month after her husband had died; she was writing what she thought her husband would have wanted her to write as he always maintained that he had ceased smoking. She felt that she would have been disloyal to him otherwise and did not realise the significance of the question. She then said: "It was a myth that he had stopped."
Alcohol History:
There is an Alcohol Questionnaire on pages 31 and 32 of the documents. According to this Mr Corbett commenced drinking alcohol in 1946 and maintained a heavy alcohol consumption until 1994." (Exhibit A1)
In a summary of his various conclusions, Dr Miller stated
"Mr Corbett commenced smoking during his eligible war service as a result of stress, peer pressure and the ready availability of tobacco. According to Mrs Corbett, her answer to the smoking questionnaire was wrong and he did smoke until eighteen months before he died. Mr Corbett developed ischaemic heart disease about six months prior to his death due to an acute myocardial infarction and he therefore satisfies the Statement of Principles for ischaemic heart disease. I do not consider that he satisfies any other Statement of Principles and I do not consider that his foot injury would have prevented him from 3 Mets of activity for seven years before the onset of ischaemic heart disease.
His alcohol abuse contributed to hypertension but does not satisfy the Statement of Principles for alcohol abuse or dependence." (Exhibit A1)

Dr Gertler

Dr Gertler, a consultant psychiatrist, in his report dated 26 June 2000, stated that during his service, the late veteran was exposed to several stressors. Dr Gertler made the following comments:
"In my opinion the veteran, Geoffrey Corbett, did suffer from alcohol dependence. The Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, factor 2 has been satisfied in that he manifested tolerance by having a need for markedly increased amounts of alcohol to achieve the desired effect; there is no evidence that he ever drank less over the years until 1994-95. Moreover the veteran appears to have been unsuccessful in ceasing his alcohol consumption or cutting it down to acceptable levels after having been advised to do so if the repeated GGT tests after 1994-95 until 1999 are to be accepted as having been caused by continuing alcohol consumption.
The veteran also continued to use alcohol despite the knowledge that the persistent or recurrent physical problems related to his liver, was likely to have been caused by alcohol.
Factor 5(b) of the Statement of Principles concerning Alcohol Dependence or Alcohol Abuse has, in my opinion, been satisfied in that the veteran did experience several severe stressors during his period of service at a time when he was consuming alcohol and almost certainly became dependant upon it. No other factors listed at paragraph 5 could, in my opinion, have caused the veteran's condition.
In my opinion, on the balance of probabilities, the veteran Geoffrey Corbett's alcohol habit was connected with the circumstances of his service." (Exhibit A2)

Dr Richards

Dr Richards, a consultant cardiologist, in his report dated 22 January 2001, made the following comments as a consequence of a review of the clinical files:
"Mr Corbett apparently commenced smoking and drinking alcohol during his period of eligible service, but in the absence of "undue pressure or stress during his period of service." He probably effectively stopped smoking in 1979, and stopped drinking in or about 1994, although there was some elevation of GGT the following year. Although Mr Corbett had hyperlipidaemia, he was on no cardiac medication when discharged from Royal Newcastle Hospital in 1997. From the notes or Dr Romero, it would appear that a diagnosis of possible angina pectoris was made after 1997. In his death certificate, Dr Romero indicated that ischaemic heart disease may have been present for six months prior to Mr Corbett's death.
Accordingly, it is my opinion that the clinical onset of ischaemic heart disease occurred approximately 19 or 20 years after the effective offset of cigarette smoking."
(Exhibit R2)
In his further opinion, Dr Richards detailed that:
(a) although the late veteran was a heavy drinker, there was no evidence that he fulfilled the criteria for substance abuse or dependence;
(b) the late veteran demonstrated elevated GCT enzyme levels consistent with the effects of alcohol;
(c) the late veteran developed a habit of alcohol consumption during his service, but that this alcohol consumption was not perpetuated by any particular facts in his service; and
(d) the clinical onset of the late veteran's ischaemic heart disease commenced some six months before his death.

Contentions
Applicant

The Applicant contends that the nature and conditions of the late veteran's service led to the development of a smoking habit, which in turn led to the development of ischaemic heart disease, the latter being the cause of death. In particular the Applicant contends that Statement of Principles Instrument No 81 of 1998 is satisfied in that the Applicant meets the requirement of factor 5(f). The Applicant relies on the smoking history and the opinion of Dr Miller.
In the alternate, the Applicant contends that the late veteran experienced a number of stressful incidents during his service and that this led to the development of alcohol dependence or abuse. For this contention the Applicant relies on the evidence relating to stressful incidents and the opinion of Dr Gertler and that as such facts 5(b) of Statement of Principles Instrument No 77 of 1998, concerning alcohol dependence or alcohol abuse, is satisfied. As a consequence of the alcohol dependence, it is contended that facts 5(b) of Statement of Principles Instrument No 26 of 1999, concerning hypertension, is satisfied. This further contended that factor 5(a) of Statement of Principles No 81 of 1998, concerning ischaemic heart disease, is satisfied, leading to the final contention that the death was causally connected to service.

The Applicant also submits that this particular matter is one in which section 119 of the Act is meant to assist, in that there is clearly a lack of particular evidence as a consequence of time and death.
Respondent
The Respondent, in opening comments on this matter, stated that the revised smoking history as detailed by the Applicant was not in contention, but the alcohol was.
The Respondent contended that the recorded history of alcohol and smoking failed to establish a causal link between alcohol, smoking and service, and that it had not been demonstrated that the late veteran was exposed to the necessary stressful events or that smoking increased as a result of his service. In making such a contention the Respondent relied upon the decision in Repatriation CommissionvHughes (1990) 13 AAR 34. In relation to the issue of alcohol, the Respondent relies upon the opinion of Dr Miller, and for both smoking and alcohol on the opinion of Dr Richards.
Consideration and Findings
In preliminary observations the Tribunal notes that the standard of proof in this matter is one of reasonable satisfaction pursuant to s120(4) of the Act in that the late veteran's service did not involve any operational service. Further the Tribunal notes that the date of effect is 7 March 1999, if the Applicant is successful in her claim, being the day after the date of her late husband's death.
In turning to issues of fact, the Tribunal, having reviewed the evidence of the Applicant, and the medical and historical evidence as obtained from the particular statements and Write Way Research and importantly noting and acknowledging that the Respondent does not contest the revised history of smoking for the late veteran as described by the Applicant, makes the following findings of fact:
(a) the late veteran's cause of death was ischaemic heart disease;
(b) the clinical onset of the late veteran's ischaemic heart disease was six months prior to his death (Drs Miller and Richards);
(c) the late veteran had suffered from hypertension for many years (1987 noted in clinical records of Dr Romero);
(d) the late veteran did not smoke before enlistment;
(e) the late veteran commenced smoking while in the army and prior to his first leave;
(f) the late veteran was smoking at the rate of 40 cigarettes per day at the time of discharge;
(g) the late veteran continued to smoke at this rate until 1987 when he reduced the rate to approximately six a day;
(h) the late veteran continued to smoke at the rate of six a day until 18 months before his death;
(i) the late veteran did not drink prior to enlistment;
(j) the late veteran commenced drinking during his service and was a heavy drinker in 1946; and
(k) the late veteran continued to drink considerable daily quantities of alcohol to 1994 when he ceased.
The Tribunal recognises that in this matter there are particular difficulties in obtaining exact details of significant issues and that this is due to a variety of records, the effluxion of time, difficulties with memories and the death of the late veteran. The Tribunal particularly acknowledges the difficulties associated with the detailing of stressful experiences.
The Tribunal observes that the Applicant has submitted that there are two possible contentions in this matter, by which the late veteran's death can be causally related to his service. The first of these relates to the late veteran's smoking habit being a causal factor in his ischaemic heart disease, with the issue remaining as to whether his smoking habit was connected to service.
In considering this issue the Tribunal has found that the smoking habit did develop during his period of service and apart from the availability of cigarettes, peer pressure and other aspects of service life, The Tribunal has no direct evidence that these factors were directly involved. In further considering the nature and content of the late veteran's service in so far as it can, The Tribunal, in particular, has paid attention to the various stressful experiences nominated in the material, and these include the Broome experience, being advised of the death of a friend, the possibility of soldiers unable to swim being drowned in landing barge exercises, the proximity to enemy shelling as in Newcastle, and the threat of enemy action in Trinity Bay.
In considering all the material, and recognising the deficiencies in some of the particulars as a consequence of time, memory, records and the death of the late veteran, the Tribunal is satisfied on the balance of probabilities that the late veteran's service included exposure to a number of stressful events and that these stressful events coupled with the availability of cigarettes, the age of the veteran at enlistment (19 years, 11 months), peer pressure and promotion to Lance Bombardier two months after enlistment; to Bombardier four months after enlistment and to Sergeant ten months after enlistment with associated increasing responsibilities for troops under his command in such stressful situations, make it more likely than not that the late veteran's service contributed significantly to the development of his smoking habit. The Tribunal finds that on the balance of probabilities the late veteran's smoking habit was caused by the nature, duties, experiences and conditions of his service.
Further, the Tribunal, in considering Statement of Principles Instrument No 81 of 1998, concerning ischaemic heart disease, concludes that the late veteran, having stopped smoking prior to the clinical onset of ischaemic heart disease in 1998, some 12 months before, satisfies factor 5 (e) (I) and 5(f)(ii). Accordingly, the Tribunal concludes that on the balance of probabilities the late veteran's death has a causal connection to his service.
In considering the second contention, the Tribunal notes the history of alcohol intake by the late veteran and further, that the Tribunal has already determined that the late veteran experienced a number of stressful situations during his service. However, the Tribunal, in noting the definition of experiencing a severe stressor in paragraph eight of Statement of Principles Instrument No 77 of 1998, concerning alcohol dependence or alcohol abuse, concludes that the late veteran's experiences were not of this magnitude, for there is no evidence available to the Tribunal that he reacted to the nominated situations with intense fear, helplessness or horror.
As a consequence of this finding, namely the absence of experiencing a severe stressor, factor 5(b) of the same Statement of Principles is not satisfied. Accordingly, the late veteran's alcohol habit cannot be considered to have a causal connection with his service. Further, in the absence of this element, namely alcohol dependence, the second contention, involving alcohol dependence causally related to hypertension and hypertension to ischaemic heart disease cannot be established. The Tribunal finds on the balance of probabilities that there is no causal connection with service of alcohol to death from ischaemic heart disease.
Determination
The Tribunal determines that the decision under review be set aside and in substitution therefore determines that the death of the late veteran was war caused and that the Applicant is entitled to payment of a War Widow's Pension with the date of effect being 7 March 1999.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 October 2000 and 19 February 2001
Date of Decision  7 June 2001
Counsel for the Applicant        Mr Vindin
Solicitor for the Respondent    Mr Wallis/Mr Modder