David Sandeman (as attorney for Dorothy Marie Kluge) and Repatriation Commission
[2014] AATA 353
•5 June 2014
[2014] AATA 353
Division VETERANS’ APPEALS DIVISION File Number
2013/2520
Re
David Sandeman (as attorney for Dorothy Marie Kluge)
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 5 June 2014 Place Melbourne The decision under review is set aside and in substitution it is decided the death of Laurence Edgar Kluge was war caused.
........[sgd John Handley]................................................................
John Handley, Senior Member
VETERANS’ ENTITLEMENTS – application by the son of widow of a WW2 veteran as her attorney – veteran served in New Guinea and Bougainville – exposed to battle at Slater’s Knoll in 1945 – veteran shot and wounded and exposed to category 1A and 1B type events – 3 hypotheses pursued connecting death by CVA with service – whether hypertension attributable to consumption of salt – whether veteran suffered depressive disorder – decision set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 119
CASES
Bull v Attorney General (NSW) (1913) 17 CLR 370
Grundman v Repatriation Commission (2001) 66 ALD 125
Higgins and Repatriation Commission [2013] AATA 630
Hutton and Repatriation Commission [2013] AATA 940
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission (2011) 280 ALR 621
Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hayes (1982) 43 ALR 216Starcevich v Repatriation Commission (1988) 76 ALR 449
SECONDARY MATERIALS
Kenardy J, Background Report: Veterans’ Affairs Consultancy (September 2010)
Long GM, Australia in the War of 1939 – 1945. Series 1 – Army. Volume VII – The Final Campaigns (1st ed, 1963)
Statement of Principles, Cerebrovascular Accident (Instrument No. 123 of 2011)
Statement of Principles, Cerebrovascular Accident (Instrument No. 51 of 2006)
Statement of Principles, Depressive Disorder (Instrument No. 27 of 2008)
Statement of Principles, Hypertension (Instrument No. 63 of 2013)
Statement of Principles, Posttraumatic Stress Disorder (Instrument No. 19 of 2014)
Statement of Principles, Posttraumatic Stress Disorder (Instrument No. 5 of 2008)Walker A, Clinical Problems of War (The Australia War Museum, 1952)
REASONS FOR DECISION
John Handley, Senior Member
5 June 2014
David Sandeman, the applicant, is the son of Dorothy Marie Kluge. He holds an enduring Power of Attorney, granted to him (and his brother Michael), by her on
13 September 2002. Mrs Kluge is infirm and was unable to give evidence in this review.
An application made on behalf of Mrs Kluge for widows’ pension was refused by the respondent on 11 April 2012. The Veterans’ Review Board (the VRB) affirmed that decision on 3 May 2013.
Mrs Kluge is the widow of the late Laurence Edgar Kluge (the veteran) who died on
8 June 2002, aged 80 years. He was a member of the Australian Army between 5 March 1942 and 29 May 1946. He served in Papua New Guinea and Bougainville as a member of the 2/25th Infantry Battalion.
The veteran’s service, so far as can be gleaned from the service records, was traumatic and exposed him to conflict in New Guinea and Bougainville. The history recorded in the reasons of the VRB at paragraph 18 was learnt during the hearing of this review to be a reproduction taken from Wikipedia. Whilst it purports to be a history of his Battalion whilst it was serving on its second tour of New Guinea, it is inconsistent with the veteran’s service records.
The service and medical records commencing at page 1 of the T documents indicate the veteran:
·First served overseas in New Guinea from 25 March 1943 until 9 September 1944. During that period, he was evacuated to Queensland for treatment of dengue fever in May 1943. (The medical records at pages 5, 11 and 12 describe the illness, in this period as, malaria, dengue fever and rubella. The service records at page 2 record the veteran was evacuated for treatment of rubella. Malaria was accepted as a war caused illness in 1946 but without a pension entitlement).
·
Returned to New Guinea on 28 October 1944 and moved to Bougainville on
15 November 1944. On 5 April 1945 he was wounded in action and evacuated to the 11th Field Ambulance where he was treated for 10 days until he was discharged on 15 April and returned to his unit. The records indicate the veteran suffered mortar wounds to his scalp. On 11 October 1945 he was evacuated and had emergency surgery to remove his appendix. He was discharged on
29 October 1945 and returned to his unit. He returned to Australia in April 1946 and was discharged on 29 May 1946.
During the second day of hearing I expressed my concern about the absence of credible and reliable historical information concerning the conflict in which the 2/25th infantry Battalion was involved in New Guinea and Bougainville. I also expressed some concerns about information within the clinical file of the Wangaratta Hospital where the deceased was admitted shortly prior to his demise. (The hospital file was exchanged on the first day of hearing). The hearing was subsequently adjourned part heard. Before the resumption on 24 April 2014, the respondent obtained a report from Writeway Research Service (to which a number of historical and documented records were attached) and a report from Professor John Cade who interpreted the clinical data.
Historical and service documents
There is little documented information concerning the service of the veteran in New Guinea. All of the information now available points to the veteran directly confronting and being exposed to armed conflict in Bougainville.
The documented information supplied by Writeway indicates the veteran was exposed to conflict in Bougainville from late 1944. His unit (the 25th) relieved the 9th infantry battalion and captured Pearl Ridge on 30 December 1944. The 25th then advanced to the Puriata River until March 1945 where it moved inland where it was engaged in battle at Slater’s Knoll. The various descriptions of battle at that location are horrific.
Records held by the Australian War Memorial record the battle occurred between
26 March and 5 April. The 25th was surrounded and outnumbered yet it repelled numerous attacks from 2 Japanese regiments (Exhibit R6, attachment 2). Communication lines between the 25th and the 7th Brigade were cut before 5am on
5 April but a warning was received that attack was imminent. At 5am the Japanese attacked from the north and a number division attacked from the south-west shortly after. Until 6:20am wave after wave charged forward and was brought low. Some Japanese fell within four yards of the weapon pits…… As the light became clearer, the Australians saw that “enemy dead lay, literally, in heaps, in front of the wire”, and bodies could be seen scattered over an area some 200 yards square. On 6 April, 292 Japanese bodies were counted (Exhibit R6 attachment 3 – Australia in the War of 1939 – 1945. Series 1 – Army. Volume VII – The Final Campaigns (1st edition 1963) Chapter 7 – To Slater’s Knoll and Soraken).
The veteran was wounded on 5 April 1945. The 25th Battalion diary to the period 4 - 6 April (Exhibit R6, attachment 4) records that on 5 April 1945 6 troops were killed and
6 were wounded between 5am and 5pm. A Field Medical Card dated 6 April 1945 records that the veteran suffered a BW (bullet wound) mortar scalp at 6am on 5 April (Exhibit R3). The T documents at page 2 record the veteran having been Wounded in Action (Bougainville) on 5 April 1945. A Report of Medical Examination Prior to Discharge completed on 30 January 1946 (T documents page 9) record one of the injuries suffered during service was a GSW (gunshot wound) scalp.
The Field Medical Card (Exhibit R3) records the veteran was taken by Field Ambulance to the MDS (Main Dressing Station) where he remained for treatment until 15 April when he was returned to his unit. During that period he also suffered other illnesses.
On 11 October 1945 the veteran had emergency surgery, to remove his appendix, at the 2/1AGH (Australian General Hospital) at Torokina. Page 11 of the Writeway report has a photograph depicting that hospital in 1945 under canvas. An extract within the report records that: The hospital was established in tents on the beach, between the jungle and the Pacific Ocean.
The hearing
Ms Martin of counsel appeared on behalf of the applicant and Mr Rudge, a Departmental advocate appeared on behalf of the respondent. Evidence was heard from David and Michael Sandeman, the children of Mrs Kluge, Joanne Sandeman (wife of David) and Doctor Albert Kaplan, a consultant psychiatrist who prepared a medico legal report, from the documents lodged, at the request of the applicant’s solicitor dated 5 September 2013. A number of documents were also lodged and received into evidence.
The death certificate (T documents page 35) certified the cause of death as respiratory failure -12 hours; cerebrovascular accident (cva); circulatory failure.
Ms Martin said the applicant advanced 3 hypotheses connecting the service of the veteran and his death namely:
(i)Service à salt consumption à hypertension à cva à death
(ii)Service à stress à PTSD or depressive disorder à hypertension à cva à death
(iii)Service à stress à depressive disorder (dysthymia) à cva à death
The evidence
Following his discharge from service, in 1946, the veteran obtained a small rural property at Penola in South Australia under a soldier settlement arrangement. He farmed sheep and also obtained work as a shearer. He did not marry and operated the farm alone until he sold it in about 1975. David and Michael understood that he then intended to retire because he moved to live in Portland in Western Victoria. He met Mrs Kluge and they married in 1977. He was then 57 years of age. She was 47 and divorced. David and Michael met him when they were 24 and 23 years of age respectively. The veteran and Mrs Kluge lived at Narrawong, a short distance out of Portland where she was employed as a school teacher. About 10 years later, Mrs Kluge retired and they moved to Bright in north-eastern Victoria (to alleviate asthma from which the applicant suffered) where they built a home and continued to reside until the veteran died.
David and Michael said they were fond of the veteran and treated him as a father. They described him as being reserved and quiet and did not speak in emotional terms. He did not discuss his service experiences. David recalled him as being bottled up, he learnt his habits and what his likes and dislikes were and they eventually became comfortable with one another but there were some barriers in terms of he was different. Michael, who had a background in farming, was able to have a conversation with the veteran about their common experiences but he also was aware of the veteran being reserved. David said it was an unusual marriage in terms of it wasn’t love and affection, they were more of a team but he and their mother were very happy together (Transcript pages 9, 16 and 35).
The applicant and the veteran both walked together, twice daily, with their dog. The veteran did most of the cooking, which gave him some pleasure. The applicant encouraged him to join the local RSL club in Bright, which he did, although reluctantly, apparently in apprehension of having to be sociable to persons outside his immediate family and the risk of others initiating discussion about events in service. Michael understood the veteran played lawn bowls, in Portland and Bright but did not know how frequently or whether he socialised with others after games.
David and Michael observed the veteran as being a gentleman and courteous. He did participate in social gatherings - birthdays and at Christmas - but did not show emotion. He did not sing or laugh. David said he accepted it and just went along with it (Transcript page 18). David said he observed the veteran to be in a depressed mood, on most days (that he saw him) and when he was uncomfortable, he would withdraw, especially after he had a restless night with nightmares. He said he could recognise signs of depression and fatigue and we knew not to talk to him… David said the veteran never showed joy, smile, tell a joke or play with the grandchildren (Transcript pages 19-22). Michael said there were occasions when his mother and the veteran would take his children on holidays and they would stay in a caravan. The attitude or response of the veteran to those experiences is not known, but the children appeared to enjoy them (Transcript page 41).
David and Michael learnt that the veteran had been exposed to conflict during service from discussions with their mother. They were aware of scarring on his scalp which was often covered by a hat. The applicant had told them it was a war injury (Transcript page 14). They were told by their mother that he had emergency surgery to remove his appendix, without anaesthetic in a hospital constructed in a tent which collapsed. That event was recorded in a statement completed by Mrs Kluge which was attached to her application to the VRB (T documents page 43).
The veteran experienced nightmares which were well known to David, Michael and Joanne by their conversations with Mrs Kluge and their personal knowledge of the nightmares on the occasions that they stayed overnight.
The veteran experienced nightmares at least once weekly which would cause him to be extremely restless and often involved him waving his arms (on occasions striking Mrs Kluge), profusely sweating, which frequently required a change of pyjamas and bed sheets and frequently exclaiming words - especially the words Japanese or Japs - which were understood to mean that he was threatened, or feared being killed.
Michael said he lived with his mother and the veteran for about 6 weeks after they were married. He occupied an adjacent bedroom and had recollections of noises and disturbances during the night.
When it became obvious that this application would proceed, Michael had a telephone conversation with his mother. He made notes and his partner typed them within an hour of that conversation. The typed notes were appended to his statement (exhibit A2). Relevantly the statement records:
Bill (Michael) asked Dorothy what she could remember about Laurie, in relation to his service time in PNG.
She described that when they were married in the 80’s, Laurie would still have nightmares that recurred frequently. He would thrash around, with arms flailing, and on occasions would hit her. He would be yelling… bloody Japs are creeping through the jungle, they’re shooting at me… I want to get out of here…
In a statement completed by Mrs Kluge and appended to her application to the VRB
(T documents page 43) she recorded:
Up until my husband’s death he continued to suffer with violent dreams fighting the Japanese, often resulting in his striking me with flaying arms. These dreams continued on the same theme, always fighting the Japanese often seeming to end with his own death, only being prevented by his sudden awakening.
David said the veteran would not watch television programmes involving war or violence and if broadcast he would leave the room. In evidence (and recorded in his statement) he said there was an occasion when his mother asked the veteran whether he had ever killed a person during war. He said the question caused an extreme reaction and (the veteran) said that was war (Transcript page 12). The veteran was also startled by noise. Michael gave examples of cars backfiring or being noisy. He said the veteran would, on those occasions, withdraw to his garden or his shed (Transcript pages 43-44).
David said he found the veteran’s medals when recently cleaning out his mother’s house. He said he did not know they existed and he had not ever had a conversation with the veteran about them. Michael said he never attempted to engage the veteran in conversation about his experiences during the war. He said he was aware that some veterans endured horrific circumstances and how they handle it when they come out they all did individually and I didn’t want to upset the apple cart by prying into someone else’s business (Transcript page 47). Michael said he recalled that the veteran was a person who rarely spoke about himself. On occasions when he asked him about some of his experiences he said he would clam up (Transcript page 45).
David said a eulogy was delivered at the veteran’s funeral by a person, who he could not recall, who described how his stepfather had saved the life of an officer by pushing him aside to avoid being shot by a sniper. He said his stepfather was regarded as a hero because he placed himself in danger. He was regarded as a crack shot, he was positioned in trees also as a sniper (and therefore in a position of danger) and he was highly regarded. He said he was not ever aware of those circumstances and was surprised to hear of them at the funeral.
David said that most of the cooking was done by the veteran who seemed to be happy in the kitchen, it was a meditation process and it would soothe him. Whilst his mother would cook on some occasions, she would prefer to clean up the mess (Transcript page 10).
In his statement, David said the veteran used salt excessively. He recalled it was applied to his porridge at breakfast together with butter and honey. Salt was added to his lunchtime and evening meal in addition to being used when cooking vegetables, cakes, biscuits and scones. It was his belief that the veteran consumed excessive quantities of salt (Exhibit A1, page 2). David recorded in his statement that he had noticed the veteran adding salt when preparing food and also to his prepared meals. Michael stated it was his belief that far more salt than....normal was used (Exhibit A2, page 2).
In evidence David said that his mother did not use high quantities of salt when cooking whilst he was growing up. There were occasions that he struggled to eat the food that the veteran had cooked because of the salt added to it (Transcript page 10). He said the quantities of salt used by the veteran was often the topic of discussion with his wife, Joanne, who was a food teacher. He said members of his family were fussy eaters and they noticed the excessive use of salt. He had a memory of observing him add salt to food, especially into chocolate cakes that the veteran made. He recalled salt being poured either from a large plastic container or from a cardboard packet when cooking and also recalled him applying salt to his food, by repeatedly shaking a salt dispenser at the meal table (Transcript page 27, 32 and 33).
Joanne met the veteran in 1980 when she married David. On the occasions she visited him and the applicant, she observed him cooking and preparing meals.
In evidence (Transcript pages 51-56; 61-62) she said she recalled the veteran prepared his own breakfast which always consisted of porridge to which he added salt by pouring it from a cardboard packet. She recalled that her mother would add a pinch of salt when preparing porridge but described the amount the veteran used as being a fair bit. After porridge, the veteran would then eat toast to which he applied a slab of butter and vegemite which was like bitumen.
Lunch would typically consist of soup which the veteran cooked into which he added salt and applied more salt at the table. He ate sandwiches which contained preserved meat, cheese and either relishes or sauces, which she did not eat because they were too salty. The veteran sometimes ate slices of tomato which he liberally salted.
The veteran prepared the evening meal which typically comprised meat and 3 vegetables. Each vegetable was separately boiled in water into which salt was poured from the cardboard packet. The meat consumed was often either roast lamb or roast chicken which was rubbed in salt before it was cooked. The veteran also applied salt to his meal at the table from a large dispenser, with many holes in its top and the quantity of salt that emerged was like snow. She described the salt dispenser as comprising 3 circles of holes, the outer being 8 holes, the middle being 3 with one central hole. She was firm in her description of the quantity of salt the veteran discharged from the dispenser and again said it was like snow falling.
The veteran also cooked scones and cakes, especially chocolate cake which was his favourite and into which salt was added.
Joanne said the veteran did not ever measure the quantities of salt. She described his methodology as fly by your pants cooking.
Joanne said she prepared the meals for her children, when staying with the veteran and the applicant, because she did not want food cooked in boiling water to which salt was added.
Medical Evidence
The clinical file of the Bright Medical Centre (Exhibit R1) contains the treatment history of the deceased commencing in December 1997. Almost exclusively the treatment was confined to hypertension. A medical questionnaire completed by Doctor Duff at that clinic (T documents pages 22 – 23) records that hypertension is identified in earlier records, by a previous doctor, in 1987. Both representatives in this review agreed that the clinical onset of hypertension was in 1987.
Professor Cade, the principal specialist in intensive care at the Royal Melbourne Hospital reported the cause of death to have been by a CVA, by the mechanism of an atrial fibrillation and an embolism (Exhibit R7). A contribution to the death by hypertension was dismissed by him because the records of Doctor Duff indicated that illness had been appropriately treated and a CVA implicating hypertension would more likely have been by a haemorrhage.
The applicable Statement of Principles (SoP) - (123/2011, being a compilation and embracing 51/2006) connects hypertension with death if present at the clinical onset of CVA.
Professor Cade recorded he could not identify any plausible mechanism between death by CVA and service however it would appear he was not aware of the SoP and the hypotheses being advanced by the applicant, and therefore did not consider them.
Doctor Kaplan was the only doctor to give evidence in this review. He provided a report dated 5 September 2013 (Exhibit A3) based on an interview with David and Joanne Sandeman and his review of a number of documents provided to him by the applicant’s solicitor. He concluded that the veteran probably satisfied the clinical definition of either PTSD or dysthymic disorder.
In evidence, Doctor Kaplan said both of those conditions were of a severity which would warrant ongoing management. He was also satisfied that the constellation of symptoms experienced by the veteran, as he understood them, would indicate that he had significant sleep disturbance which would constitute insomnia.
When he was cross-examined, Doctor Kaplan agreed that persons who were exposed to severe trauma, such as was experienced by the veteran, might not necessarily suffer from PTSD. However he said it did not follow that the veteran, who was believed to have been a hard working self-employed farmer, who subsequently retired relatively early and eventually married would not have suffered PTSD. In his experience, once the individual’s productive lives have ended, the symptoms intensify or develop at that time. He said persons become preoccupied with a productive working life which offers a distraction. He noted the history given to him of the deceased being busy either in his vegetable garden or in the home, he was restless and avoided being idle. That history suggested to him that he was attempting to prevent his thoughts and emotions to emerge (Transcript page 71). He said the veteran’s relationship with his wife and her children and the extended family was important to him, but he was on edge, he had no friends and he experienced hyperarousal because of his startled responses to some circumstances (Transcript page 72).
He said it was doubtful that the veteran marrying, for the first time in his late 50s and thereafter living a contented life in a relationship where both the veteran and the applicant being emotionally undemonstrative did not preclude a finding that there was no pre-existing psychiatric illness. Doctor Kaplan said that the veteran and the applicant may have had difficulty demonstrating emotions and they may have made no demands on each other, which suited them because it may have allowed them to avoid emotional entanglement. He acknowledged that the veteran did marry later in life but it was also important to question why he had not married earlier (Transcript page 74 – 75).
Doctor Kaplan was unaware that the veteran had been engaged in lawn bowling and had holidays in his caravan with his grandchildren. He was aware that the veteran had joined a local RSL branch. He reported that the veteran enjoyed interacting with other veterans. When he learnt that there was evidence in this review of the veteran being reluctant to attend the RSL club and did so under sufferance, he said the veteran may have attended the club because he could relate to men with similar experiences to him (Transcript page 76).
In answer to a question from me, Doctor Kaplan said the evidence of the veteran having nightmares where he would express his sense of threat or being killed and using the words Japanese or Japs, his thrashing and profuse sweating were very significant in terms of his experiences in New Guinea, no less because he was unconsciously manifesting those experiences 50 – 60 years after service ended (Transcript page 78).
Conclusion and reasons for decision
I have often remarked in applications made by widows of servicemen who are reviewing decisions to deny them a pension, that they are often disadvantaged because the best placed witness to describe the circumstances of service (the deceased veteran) is unable to do so. My experience in reviewing decisions made by the respondent has also been, on many occasions also involving applications by veterans, that the wives and family members have often been denied or excluded from any information from the veteran about their service experiences because discussion is emotionally painful. This application is no exception.
Compounding the difficulty in this review was (i) the inability of Mrs Kluge, the widow, to give evidence; (ii) except for malaria which was accepted in 1946 but did not entitle him to any pension, the veteran did not ever make a claim in his lifetime and documents normally associated with such a claim which would usually be found in the T documents did not exist; (iii) Mrs Kluge did not know the veteran before he enlisted (and could not give any evidence of changes after he was discharged – often a source of valuable evidence) – she met him about 30 years after service ended; (iv) the limited – although very helpful – evidence given by the stepsons David and Michael and Joanne who met the veteran many years after he was discharged; (v) the absence of any evidence from former colleagues who served with the veteran; (vi) very limited clinical information and (vii) the opinions of Doctor Kaplan, reported after his interview with David and Joanne and on the basis of documents made available to him, that is, he did not interview Mrs Kluge nor obviously, speak with the veteran.
Section 119(1)(f) and (g) of the Veterans’ Entitlements Act 1986 provides that the Commission, for present purposes the Tribunal, is not bound by any rules of evidence, it may inform itself as it thinks just, shall act according to substantial justice and the substantial merits of the case and shall do so without regard to legal form or technicalities. Section 119(1)(h) also provides that the Tribunal shall take into account any difficulties… ascertaining the existence of any fact matter cause or circumstance, including any reason attributable to the passage of time, the availability of witnesses and the absence or deficiency of official records.
However, s. 119 does not permit any disregard for statutory criteria nor is s. 119(1)(g) intended to provide an easy route to a favourable decision for a veteran… (Grundman v Repatriation Commission (2001) 66 ALD 125 at [33]).
The decision immediately above does not, in my view, abrogate a very important and I think an enduring principal that beneficial or remedial legislation, which confers entitlements and benefits to persons, no less veterans and their widows, should be given a reasonably liberal interpretation (Starcevich v Repatriation Commission (1988) 76 ALR 449 at 454).
In Repatriation Commission v Hayes (1982) 43 ALR 216 at 219, the Federal Court agreed with a submission put to it that the legislation should be construed so as to give the fullest relief which the fair meaning of its language will allow but with the caveat that this principle does not mean that the true signification of the provision should be strained or exceeded (Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384; also Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 at 638).
There was no challenge by either party to the certified causes of death of the veteran being respiratory and circulatory failure and CVA. The following exercise will determine whether a reasonable hypothesis has been raised connecting the death from CVA with the circumstances of the veteran service.
That exercise will follow 4 stages as determined by Repatriation Commission v Deledio (1998) 83 FCR 82 at 95.
I am satisfied that there are 3 hypotheses advanced by the applicant and recorded at paragraph 15 earlier. There is material heard and read in this review that points to each hypothesis connecting death with the circumstances of the veteran’s service. At this stage I am not making any findings of fact nor am I deciding whether either hypothesis is reasonable.
Being satisfied that hypotheses have been raised, a decision must be made whether SoP’s are in force.
The Instrument applicable for CVA is number 51 of 2006. Factor 6(a) records the veteran must have suffered hypertension at the time of clinical onset of CVA. The medical evidence indicates the clinical onset of CVA being at or immediately before the time of death. Hypertension had been present since it least 1987. The veteran attended Doctor Duff, his GP on 5 June 2002, 3 days before his death where his blood pressure was recorded at 170/100 and he was again prescribed blood pressure medication (Exhibit R1, page 1).
However this factor also involves an examination of a sub hypothesis namely whether hypertension had a connection with the veteran’s service.
In this application, relevantly, factor 6(c) of Instrument 63/2013 (Hypertension) records that hypertension will be connected with service and death if the veteran consumed at least 12 grams of salt per day on average for at least 6 months before the clinical onset of hypertension.
Instrument 27/2008 (Depressive Disorder) has 2 relevant factors namely 6(a)(ii) and (iii) namely experiencing a category 1A or category 1B stressor, as defined, within 5 years before the clinical onset of depressive disorder.
There are 2 relevant Instruments for the condition of PTSD within the assessment period being 5/2008 as amended by 19/2014. There are a number of factors within those Instruments, which if relevant will be discussed later.
The third stage of Deledio requires the forming of an opinion whether either of the raised hypotheses are reasonable. One or more of the hypotheses will be reasonable (although only one needs to be found) if they are consistent with the template of the SoP. That finding will be permitted if the raised hypothesis contains one or more factors that have been determined by an Instrument to exist as a minimum and be related to the veteran’s service.
I am satisfied that each of the 3 hypotheses are reasonable because they satisfy the criteria within the third stage. However only at the fourth stage are findings of fact permitted, on the material heard and read in this review.
A hypothesis is sometimes described as a chain and each element within it are described as links. Every link in the chain must be established.
The first hypothesis (the salt hypothesis) only needs a finding to be made whether factor 6(c) of instrument 63/2013 exists as a minimum. The remaining links in that hypothesis, namely, hypertension and CVA are not in dispute nor are the factors within the respective SoP’s in issue because the veteran suffered hypertension at the clinical onset of the (fatal) CVA.
I am satisfied and find as a fact that the evidence overwhelmingly points to the veteran consuming at least 12 grams of salt per day on average at least 6 months for many years, certainly at least 6 months before the clinical onset of hypertension in 1987. David met the veteran a short time before he married the applicant in 1977. Michael met him about 6 months after the marriage. They did not live with him and their mother after 1977 (although Michael did for about 6 weeks when he returned from the United States in 1978) but they both frequently visited and made observations of his salt consumption.
There was a consistency in the observations by them of the salt used by the veteran commencing with pouring it into his porridge in the morning from a packet or large container, use of it in a similar manner when cooking meals at night, applying it to his own food at the meal table and his use of salt, both on observation and by taste in biscuits scones and cakes that he frequently made.
I was impressed by the evidence of Joanne who took particular note of his application of salt, not only because she was a food teacher and the consequent effect on food by the use of salt, but by her observations, I think more perceptive and acute than by David. She observed the veteran applying butter to his toast in a quantity described as a slab and vegemite applied as if it were bitumen. She observed him applying salt to his own food from a relatively large container at the table in a quantity she described as like snow and also insisted on cooking meals for her children to ensure they consumed lesser quantities of salt.
In forming an opinion about the quantities of salt consumed by the veteran from the descriptions given in evidence, I made available to the parties at the commencement of the hearing some phials, containing 15 grams of salt which were prepared by a former Tribunal member, Professor John Maynard who was a forensic pathologist. The phials were prepared by him and used some years ago when there were many applications heard in this Tribunal involving a hypothesis involving the consumption of 15 grams of salt.
One of the phials is 40 mm in diameter and the quantity (15 grams) of salt is 5 mm in height. Another phial is 25 mm in diameter and the equivalent quantity of salt is 22 mm in height. My finding a fact of the veteran consuming at least 12 g of salt (20% less than the quantity in each phial) per day is reinforced by observation of those specimens.
The remaining issue concerning the salt hypothesis is a finding of whether there was a connection between the veteran’s service and his salt consumption. This was an issue of some significance during the hearing, especially in closing submissions.
The respondent acknowledged that the veteran probably did consume salt tablets whilst serving in New Guinea and Bougainville but denied that would have been responsible for his salt consumption as described in this review.
The respondent relied on a report published in September 2010 – Background Report: Veterans’ Affairs Consultancy published by Justin Kenardy, PhD (Exhibit A4). The introduction to that report records that Mr Kenardy had been engaged to provide input into determining the psychological and physiological effects that determine salt consumption. In this report I will address the causes and correlates of salt consumption and salt over-consumption.
Mr Rudge relied on concluding remarks in the Kenardy report namely:
There is a physiologically driven need for salt and in some cases a need for excess salt, however this is not due to over consuming salt. On the contrary, it is a result of current or prior sodium depletions. The increase in salt intake after a period of consuming higher amounts of salt is not physiologically driven but is rather a hedonic preference for that amount and concentration of salt.
It was submitted that the dependence (physiological) need to consume salt was not related to the consumption of salt tablets. Reliance was made on the concluding comment in the Kenardy report namely:
…if the salt is not experienced via sense (eg ingested salt tablets), preference is not altered. Even so, preference is not dependence, and just as a person can develop a preference for higher levels of salt, so too can they develop preference for lower levels of salt through experience.
Accordingly it was submitted that there was no material pointing to the consumption by the veteran of 12 grams of salt per day being connected with service. Additionally between the 1960s and the 1980s, domestic use of salt was common and was prevalent also in manufactured foods. There was no other evidence pointing to a consumption of salt which would alter long-term preference (Transcript pages 114 – 115).
Ms Martin on behalf of the applicant submitted (Transcript pages 100-102) that the salt hypothesis had not been disproved beyond reasonable doubt nor had the respondent produced any material disproving the hypothesis.
She relied on 2 recent decisions heard in the Tribunal in the Queensland Registry – Higgins and Repatriation Commission [2013] AATA 630 and Hutton and Repatriation Commission [2013] AATA 940 which examined the circumstances of veterans who served in tropical countries and who subsequently developed a habit of high salt consumption.
Each of those applications involved consideration of reports completed by a Doctor Palazzo concerning the consumption by New Guinea veterans of salt supplements and consumption by them of salt laden food.
In the Higgins decision, at [34], an extract from a report of Doctor Palazzo is recited namely:
…it is clear that salt was an essential ration supplement for troops serving in tropical areas and that it was readily supplied to Australian military troops serving in the tropics in order to ward off heat related ailments. Salt was offered to military personnel in their rations, as salted water and in supplement tablets. There is also little doubt that the issue of salt to troops serving in hot climates was done as part of an official Australian military policy.
Ms Martin also relied on an extract from the book Clinical Problems of War published in 1952 by the Australia War Museum and authored by Doctor Alan Walker, who holds a degree in medicine and who is also a historian. At page 368 he recorded:
In the Pacific Islands, the need for salt became more urgent and salt tablets became a regular issue. Members of forward surgical teams in New Guinea, working under conditions of intense heat and humidity, found that they needed salt as much as combatant soldiers.
Doctor Palazzo, according to the Higgins decision is a consultant historian. He did not give evidence in this review.
Mr Kenardy is not identified as a medical practitioner. I treated his report as a literature review in relation to the topic he was assigned by the respondent, in 2000. The respondent did not call him to give evidence.
Some years ago, when applications made by World War II veterans who served in tropical countries to the immediate north of Australia were reviewed in this Tribunal, evidence was heard from them and historians concerning illnesses associated with salt and food rations.
Salt tablets were routinely issued and consumption of them was recommended to counter the effects of salt depletion. That is not in dispute in this review
Additionally, I have a strong memory of evidence from veterans who were also issued with sachets of salt in their ration packs which are also used and applied to food, more often than not to improve its flavour or taste. Doctor Palazzo referred to salt laden food and the supply of salt in ration packs, in addition to supplement tablets. But he was not called and the respondent was denied the opportunity to examine him. Equally,
Mr Kenardy was not called and the conclusions he drew from his literature review could not be tested.
I am satisfied that in addition to the salt tablets which would have been issued to the veteran during his service in New Guinea and in Bougainville, that consistent with the evidence heard in other applications he would have been issued with salt for application to his food and/or as an additional aid to counter the effects of dehydration.
Other than the consumption of salt during service which as a fact I am satisfied did occur, there is no other material which supports the apparent preference and obvious use of salt as a civilian. I cannot be satisfied that this link in the hypothesis has been disproved beyond reasonable doubt. It follows that I am satisfied beyond reasonable doubt, on the basis of the salt hypothesis, that the death of the veteran was war caused.
Whilst unnecessary in the circumstances to do so, I will discuss the remaining
2 hypotheses.
The second hypothesis involved the illness of PTSD. I am not satisfied that the illness of the veteran, as described by the witnesses, satisfies the clinical definition of that illness as recited within Instrument 5/2008. That instrument contains a definition derived from DSM-IV-TR. The recent PTSD Instrument (19/2014), whilst amending factor 6, does not appear to contain the new clinical definition of PTSD found within DSM-V-TM.
I have some doubt that the new definition would have been satisfied but I need not consider it, because for reasons which follow, in addition to my findings concerning the salt hypothesis, I am also satisfied that the veteran’s illness is properly characterised as Depressive Disorder (dysthymia) and a connection does exist between it and the terminal CVA.
Doctor Kaplan, although satisfied the veteran did suffer from PTSD, was also satisfied, in the alternative, that a diagnosis of dysthymia could also have been made.
Instrument 27/2008 entitled Depressive Disorder explains at paragraph 3 that illness embraces a number of psychiatric conditions, one of which is dysthymic disorder (dysthymia).
The clinical definition of dysthymic disorder is also found within paragraph 3 of the Instrument. On the evidence heard and read, I am satisfied the veteran met all of the components of the clinical definition for the following reasons:
AThe veteran did suffer depressed mood for most of the day, for more days than not, indicated both subjectively and by the observation of others for at least 2 years;
BWhilst depressed he did suffer insomnia, low self-esteem and feelings of hopelessness;
CDuring a 2 year period whilst he suffered dysthymia, he was never without the symptoms recorded in A and B above for more than 2 months at a time;
DThe veteran did not suffer a major depressive episode (as defined) during the first 2 years of dysthymia, nor was his illness better characterised by chronic major depressive disorder or major depressive disorder in partial remission;
EThere is no material that indicates the veteran ever suffered a manic episode, a mixed episode, a hypomanic episode or a cyclothymic disorder;
FThere is no material indicating that the dysthymia occurred during a chronic psychotic disorder;
GThe veteran’s symptoms were not due to the physiological effects of a substance or of a general medical condition; and
HThe veteran’s symptoms did cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
Paragraph 6(a) of Instrument 27/2008 contains, relevantly, 2 factors, which if either exists as a minimum it could be found that a reasonable hypothesis has been raised connecting the dysthymia with the veteran’s death namely:
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder.
The circumstances of the veteran clearly satisfy the events, of a category 1A and 1B stressor as defined (at paragraph 9) because he experienced a life-threatening event, was subject to a serious physical attack and was threatened with a weapon (1A) and would have been an eyewitness to a person being killed and viewed corpses or critically injured casualties as an eye witness (1B).
The remaining issue is whether the veteran experienced a category 1A or 1B stressor within 5 years before the clinical onset of dysthymia.
The events that he would have experienced occurred in Bougainville in 1945. In order to satisfy this Instrument, the clinical onset of dysthymia must have occurred in or before 1950.
Mrs Kluge did not meet him until the mid-1970s. David, Michael and Joanne met him later. There is no medical evidence indicating the applicant ever had treatment for dysthymia and accordingly there is no clinical information which would point to the onset of the illness.
However, the veteran was engaged for many months, in Bougainville, as a member of his battalion resisting the advances of the Japanese. From 26 March 1945 he was engaged in a battle at Slater’s Knoll which culminated on 5 April 1945. On that day, he was shot and wounded. The historical information summarised earlier portrays a battle to which the veteran was at significant risk by experiencing life threatening events. Some of his comrades were killed and others were wounded.
It is not difficult to imagine that those events would have been responsible for the dysthymia. I am satisfied that the conclusions recorded by Doctor Kaplan in his report (Exhibit A3) are to be preferred namely his depression appears to have been a persistent and pervasive aspect of his mood and behaviour throughout the period from approximately 1976 (when he met Mrs Kluge) until his death, it appears likely that this depression had been present previously and probably within 5 years of his military service….
I am also satisfied that the opinions expressed by Doctor Kaplan permit a finding of the clinical onset of the dysthymia in or before 1950 being within 5 years after experiencing the relevant stressors when relevant symptoms or features of dysthymia were likely to have been present. The clinical onset is not necessarily when the patient first sees a doctor for medical treatment (Kaluza v Repatriation Commission [2010] FCA 1244 at [92] and [93]; Kaluza v Repatriation Commission (2011) 280 ALR 621 at [66] and [70]).
I acknowledge that the veteran’s circumstances, as submitted, of self-employment in a farm he developed after he was discharged from service, his employment also as a shearer and his subsequent sale of the farm and retirement might suggest that the clinical onset of the dysthymia did not occur until many years later.
Alternatively it could also be submitted that dysthymia, although not clinically diagnosed but from which the veteran is likely to have suffered symptoms, was responsible for him being relatively isolated, in self-employment on a farm without ever having married or being engaged in other relationships. The reasons the veteran sold the farm are not known and it does not follow that he did sell it because it had been successfully developed and he chose retirement and financial security by the proceeds of sale.
Farming is well known as being subject to the uncertainties of weather, local and export prices affecting the returns from the sale of produce, fluctuations in running costs and insecurity of regular income, may have caused the veteran, experiencing symptoms of dysthymia to no longer be able to cope, especially, as it would seem, that he was never treated for the illness. This scenario may have influenced the veteran to sell it.
I am not satisfied these findings have provided the applicant with an easy route to a favourable decision (Grundman). The decisions made on both hypotheses reflect the sentiment of s. 119 of the Act. The difficulties faced by the applicant (refer to paragraphs 49 and 50 earlier) are overcome by the Tribunal not being bound by the rules of evidence, informing itself by the experiences of other veterans heard where their circumstances were examined in other applications and comprehending, reasonably, the circumstances the veteran is likely to have endured. To find against the applicant would not take account of the difficulty she faced ascertaining relevant facts, the disadvantage of the passage of time and the absence or deficiency of relevant records (s. 119(1)(h) of the Act).
I am satisfied that the veteran did experience category 1A and 1B stressors within 5 years before the clinical onset of dysthymia. I am not satisfied that this link in the hypothesis which commenced with service and concluded with a fatal CVA has been disproved beyond reasonable doubt.
Decision
The decision under review is set aside and in substitution it is decided that the death of Laurence Edgar Kluge was war caused.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ...[sgd].....................................................................
Associate
Dated 5 June 2014
Dates of hearing 12-13 February 2014;
24 April 2014
Counsel for the Applicant Ms L Martin Solicitors for the Applicant Williams Winter Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Repatriation Commission
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