Elson and Repatriation Commission

[2004] AATA 18

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/638

VETERANS' APPEALS DIVISION		)
Re		JEAN PHYLLIS ELSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date14 January 2004

PlaceSydney

Decision The decision under review is set aside.  The tribunal substitutes its decision that the applicant qualifies for a War Widow Pension with effect from 7 December 1998.

[Sgd]      M Sassella  Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – War Widow Pension – dependant claims pension – veteran died of malignant neoplasm of colorectum – veteran consumed at least 250 kilograms of alcohol in a 25 year period within the 40 years before clinical onset of malignant neoplasm of colorectum

Veterans’ Entitlements Act 1986 ss 5E(1), 11(1), 14(1), (3), 20(1), 120(1), (3), 120A(3), 157(2)(a)(ii), 196B(14)

Statement of Principles 58/2002 concerning malignant neoplasm of the colorectum

Statement of Principles 23/96 concerning malignant neoplasm of the colon

Statement of Principles 5/98 concerning malignant neoplasm of the colon

Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse

Statement of Principles 5/94 concerning psychoactive substance abuse and dependence

Re Jean Elson and Repatriation Commission [2002] AATA 1141

Kattenberg v Repatriation Commission (2002) 34 AAR 562

Repatriation Commission v Deledio (1998) 49 ALD 193

McKenna v Repatriation Commission (1999) 29 AAR 7Repatriation Commission v Gorton (2001) 33 AAR 370

Repatriation Commission v Williams [2001] FCA 1195

REASONS FOR DECISION

14 January 2004 Michael Sassella, Senior Member           

RESULT

Mrs Elson qualifies for a War Widow Pension with effect from 7 December 1998.

BACKGROUND

1.      On 6 November 2002 the Administrative Appeals Tribunal (“the tribunal”) handed down a decision with written reasons in the matter, Re Jean Elson and Repatriation Commission [2002] AATA 1141. The tribunal affirmed the decision of the Repatriation Commission (“the respondent”). The tribunal found that Mr David Elson (“the veteran”), who was deceased and whose widow, Mrs Jean Phyllis Elson (“the applicant”), was seeking a War Widow Pension, had died of metastatic carcinoma of the colon with a date of clinical onset in the first few months of 1998.

2.      The tribunal found that, while satisfied that the available material pointed to Mr Elson consuming a total quantity of alcohol in excess of 250 kg over 25 years, the material did not point to raised facts linking that consumption with a war-caused alcohol habit.  In paragraph 55 the tribunal said, “In essence, the material before the Tribunal does not point to raised facts which are consistent with the template of factor 5(c) [of a Statement of Principles (“SoP”) 58/2002[1] concerning malignant neoplasm of the colorectum] in relation to war-caused consumption alone”..  In paragraph 54 the tribunal had said that it was insufficient for factor 5(c) to argue that a veteran’s operational service had caused a material aggravation or made a contribution to the veteran’s contracting of colon cancer.

[1] Elson appealed the tribunal decision to the Federal Court of Australia.  The parties agreed to remittal of the matter by consent on the basis that they agreed that the tribunal had erred in law by directing itself in paragraph 54 of its reasons that factor 5(c) in SoP 58/2002 is not a factor to which material aggravation or contribution applies..  The parties cited Kattenberg v Repatriation Commission (2002) 34 AAR 562 as relevant.

ISSUES

4.      The applicable issues stemming from the Veterans’ Entitlements Act 1986 (“the Act”)[2] as interpreted by the courts are:

[2] Mrs Elson a dependant of the deceased veteran, Mr Elson, under the Act?

(b)If the answer to (a) is yes, did Mrs Elson make a valid claim for a pension?

(c)If the answer to (b) is yes, if Mrs Elson’s claim is successful what is the date of effect of any favourable tribunal decision?

(d)If the answer to (b) is yes, what is the correct diagnosis of the condition that caused Mr Elson’s death?

(e)Did Mr Elson engage in operational service so that the reasonable hypothesis standard of proof applies?

(f)If the answer to (e) is yes, is there a hypothesis linking Mr Elson’s fatal condition to his operational service?

(g)If the answer to (f) is yes, is there a relevant SoP?

(h)If the answer to (g) is yes, does the hypothesis accord with the requirements in the SoP?

(i)If the answer to (h) is yes, is the tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A)Is Mrs Elson a dependant of the deceased veteran, Mr Elson, under the Act?

5.      I find that Mrs Elson is a dependant of the deceased veteran.  In accordance with ss 11(1) and 5E(1)[3] of the Act she was named as Mr Elson’s de jure wife, even if separated, in the death certificate dated 21 July 1998 relating to the death occurring on 1 July 1998. 

(B)If the answer to (a) is yes, did Mrs Elson make a valid claim for a pension?

[3] Paragraph (b) of the definition of “widow”.

6. I find that Mrs Elson made a valid claim for a War Widow Pension as required by s 14(1) and (3) of the Act. The claim was received by the Department of Veterans’ Affairs on 27 January 1999 and was before the tribunal. The claim was in the appropriate form.

(C)If the answer to (b) is yes, if Mrs Elson’s claim is successful what is the date of effect of any favourable tribunal decision?

7. In accordance with s 157(2)(a)(ii) of the Act the date of effect of a decision favourable to Mrs Elson would be six months prior to the date of her application to the Veterans’ Review Board (“VRB”) for a review of the respondent’s decision. The VRB received the application for review on 7 June 1999. The date of effect would thus be 7 December 1998. Had Mrs Elson gone to the VRB within three months of receiving notice of the respondent’s primary decision the date of effect, under s 20(1) of the Act would have been 27 October 1998.

(D)If the answer to (b) is yes, what is the correct diagnosis of the condition that caused Mr Elson’s death?

8.      I find that Mr Elson died of metastatic carcinoma of the colon.  This is based on the death certificate and a report dated 29 April 2002 written by treating doctor, Dr R Venkatersan.  The tribunal made a similar finding in its earlier decision and that finding has not been challenged.

(E)Did Mr Elson engage in operational service so that the reasonable hypothesis standard of proof applies?

9. I find that Mr Elson did engage in operational service. Based on Mr Elson’s service records the respondent accepted in its decision-making that Mr Elson engaged in operational service in the Far Eastern Strategic Reserve from 11 October 1957 to 18 September 1959 and in Vietnam from 15 March 1968 to 26 March 1969. He also had “eligible defence service” from 7 December 1972 to 23 September 1975. In relation to any matters alleged to have occurred during operational service the reasonable hypothesis standard of proof will apply (s 120(1) of the Act).

(F)If the answer to (e) is yes, is there a hypothesis linking Mr Elson’s fatal condition to his operational service?

10.     The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that death was war-caused.  The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

11.     The first step is for the tribunal to consider all the material before it to determine whether that material points to a hypothesis connecting the cause of death with the circumstances of the particular service rendered by the applicant.

12.     The second step is to ascertain whether there is a relevant SoP in force. 

13.     The third step is to form an opinion as to whether the hypothesis raised is reasonable.  If the hypothesis is consistent with the template in the SoP it will be reasonable.  The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant’s service.

14.     It is not immediately clear what hypothesis is before the tribunal.  In the applicant’s statement of facts and contentions (prepared for the 2002 tribunal hearing) the suggested hypothesis is that Mr Elson was exposed to stressors during operational service which resulted in the onset of alcohol abuse or alcohol dependence.  This in turn led to Mr Elson developing colon cancer.  Anticipating issue (g), the statement of facts and contentions proceeded to invoke factor 5(b) of SoP 23/96[4] as amended by SoP 5/98[5] to argue that the hypothesis is consistent with the SoP on malignant neoplasm of the colon.  This must, however, be wrong because factor 5(b) relates to a veteran’s cigarette smoking history.

[4] respondent’s statement of facts and contentions (also prepared for the 2002 tribunal hearing) identified the hypothesis as that involving war-caused alcohol consumption which in turn resulted in malignant neoplasm of the colon as in [10] above.  It correctly identified factor 5(c) of SoP 23/96 as the appropriate factor.  However, the respondent contended that the necessary war-related stressor required for a war-caused alcohol abuse or alcohol dependence was not raised on the material before the tribunal.  The need for such a stressor arises from the SoP relating to alcohol dependence or alcohol abuse (SoP 76/98[6]) or its predecessor relating to psychoactive substance abuse and dependence (SoP 5/94[7]). 

[6] was thus an assumption that compliance of the raised facts with the SoP concerning alcohol abuse or dependence was necessary in order to comply with factor 5(c) in the SoP concerning malignant neoplasm of the colon.  This seemed to flow from the decision of the full Federal Court in McKenna v Repatriation Commission (1999) 29 AAR 70 where the pre-existence of war-caused hypertension was a named factor in a SoP concerning ischaemic heart disease. It was held that the raised facts must suggest that the pre-existing hypertension was war-caused in that at least one of the factors connecting service with hypertension in the hypertension SoP was raised in the raised facts.

17.     I doubt that this is necessary in the matter of malignant neoplasm of the colon because the factor in the SoP relating to that condition does not require a hypothesis that the veteran suffered from pre-existing alcohol abuse or dependence if factor 5(c) is to apply.  Factor 5(c) describes comprehensively a self-contained situation whereby the hypothesis is that the veteran drank “at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon”..  Conceivably a veteran may have consumed that quantity of alcohol within that time frame and at the appropriate time without having formed an alcohol dependence or suffering from alcohol abuse as defined in the relevant SoP.  There is no reference to the terms “alcohol abuse”, “alcohol dependence” or “psychoactive substance abuse” in SoP 23/96.  Looking for a stressor in the raised facts, which would be necessary if alcohol abuse or dependence were involved, therefore seems unproductive.

18.     The bare bones hypothesis thus seems to me to be that Mr Elson sustained a service-related increase in his alcohol consumption during operational service that contributed to the development of his colon cancer.

(G) If the answer to (f) is yes, is there a relevant SoP?

19.     I find that there is a relevant SoP.  It is SoP 58/2002, published on 6 August 2002, concerning malignant neoplasm of the colorectum.  This SoP is stated to replace the two earlier separate SoPs concerning malignant neoplasm of the colon and of the rectum.  This was applied by the tribunal in its 2002 decision.  The decided Federal Court cases[8] hold that the SoP in force at the date of the tribunal decision is to be applied.  However, they also hold that if Mrs Elson’s application fails under SoP 58/2002 then the tribunal must test her claim using the SoPs in force as at the date of the primary decision, 29 January 1999.

[8] Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195.

(H) If the answer to (g) is yes, does the hypothesis accord with the requirements in the SoP?

20.     This is the third step identified in the Deledio decision ([10] above).  In [17] above I noted the requirements in factor 5(c) of the SoP concerning malignant neoplasm of the colon promulgated in 1996.  Factor 5(c) in the SoP now relevant, SoP 58/2002, requires that the raised facts suggest that the veteran drank “at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum.”

21.     As the court said in Deledio ([11] above), I must consider all of the material before the tribunal to determine whether there is a hypothesis that is reasonable.  The following relevant raised facts emerge from that material:

(a)Mr Elson was a social drinker prior to his operational service in Vietnam (Mrs Elson’s evidence).  Mr Elson had drunk two drinks a night in World War 2 during service with the RAF (Mrs Elson’s evidence). 

(b)Mr Elson’s drinking habit increased dramatically while he was in Vietnam.  He had about six drinks every day.  (Mrs Elson’s evidence, based on what Mr Elson told her).  A Mr Barry King who served with Mr Elson in Vietnam said in a statement that considerable amounts of alcohol were consumed on a daily basis in Vietnam.  He served with Mr Elson after both were back in Australia and said that they continued to drink too much.

(c)Researcher Brendan O’Keefe looked into alcohol consumption by troops in Vietnam when Mr Elson was there and ascertained from a number of informants that consumption was very heavy.  One of these, a Mr Proctor, knew Mr Elson when both were military policemen.  He told Mr O’Keefe that Mr Elson most definitely had a drinking problem over many years in the army.  However, Mr O’Keefe cited information from a Mr Parvin who said he could not recall Mr Elson consuming a lot of alcohol in Vietnam and that he never missed a day’s work for that or any other reason. 

(d)Mr Elson had told Dr S Dean, a psychologist, that he drank and smoked heavily to forget and overcome his nervousness and anxiety (which somehow resulted from Vietnam).

(e)Mr Elson was still drinking six drinks a day when he married Mrs Elson in 1982 (Mrs Elson’s evidence).  Mrs Elson met Mr Elson in 1979 and he was then drinking beer in the main with perhaps some scotch whisky each night (Mrs Elson’s evidence). 

(f)Mr Elson’s consumption did not change much over the period of the marriage (Mrs Elson’s evidence).  Later Mrs Elson said he drank from three to six drinks a day.  She told Dr Dinnen he drank four or five drinks a day through the years. 

(g)Mr Elson’s treating doctor for 1995-1998, Dr R Venkatersan, described Mr Elson’s alcohol intake in those years as minimal and, to the best of his knowledge, that had been the consumption in the past.

(h)Mr Elson told the Macarthur Health Service on 15 June 1998 that he did not drink alcohol.  On 22 June 1998 he was recorded as saying he never drank, at least at that time. 

22.     It is common ground that the material shows that the 250 kilograms consumption of alcohol occurred.  As Mr Smith, for Mrs Elson, said, only 2.7 drinks a day must be consumed over 25 years in order to satisfy the requirement in factor 5(c).  Mr Elson was said to have consumed six, or at least three to six drinks a day, over a lengthy period.  The tribunal in its earlier decision summed up the apparent picture in paragraphs 45-49:

“…

45. In addressing the use of alcohol by the late veteran, the material points to the late veteran having commenced drinking during his service with the RAF in World War II, when it is said that he was drinking two drinks each evening. Thereafter the material is silent as to the late veteran's use of alcohol until 1968 when he is described as a social drinker. The Tribunal observes that during the period 1943 - 1968 the late veteran had seen service in World War II, Korea, migrated to Australia, worked as a station hand, joined the Army in 1955 and served for two years in the Far East Strategic Reserve (operational service) as a military policeman.

46. The Tribunal next observes that the material points to the late veteran's increase in his use of alcohol from that of a social drinker to six drinks a day. Such an increase is pointed to in the material and is said to have arisen as a consequence of stress associated with his service, experiencing particular stressful events, and by virtue of the nature of his service, which included availability to cheap alcohol, the customs and practices of his work environment and the social pressures and customs of his peer group.

47. The material points to the late veteran continuing to drink at this increased rate of six drinks a day, after his Vietnam service, as both a consequence of his duties as Mess president of the Sergeant's Mess and a continuance of a habit which had evolved during his operational service.

48. The Tribunal further observes that the material points to the late veteran continuing to drink an average of four to five drinks per day until 1994, at which time he and his wife separated. The material points to the late veteran's use of alcohol during this period (that is from 1975 to 1994) as arising from a continuance of his habit, having developed during his operational service, and also his attempt to cope with anxiety and depression arising from service. It is also noted that the material points to a divorce from his first wife in the early seventies and the death of a son in 1988, the latter event associated with some temporary increase in alcohol usage by the late veteran.

49. The Tribunal, mindful that an opinion as to whether a hypothesis is reasonable is a question of fact, identifies that the material points to the late veteran consuming six drinks a day during his Vietnam service. The material further points to the late veteran being a social drinker prior to his Vietnam service. The material does not point to a definition of the term ‘social drinker’ either in context or quantum. The material does point to the nature of the late veteran’s operational service in Vietnam, incidents experienced, the stress of operational service and the particulars of an environment in which cheap alcohol was freely available and readily consumed in a social milieu of consistent peer custom and practice.

…”

23.     The tribunal’s problem in 2002 was the paucity of material capable of suggesting that there had been an increase in Mr Elson’s alcohol consumption in Vietnam at all, or to which service had contributed.  The best that was known of Mr Elson’s pre-1968 consumption was that he was said to have consumed two drinks a day as long ago as 1945.  The tribunal said in paragraph 45 that it was left in a position where it was unable to infer or assume facts as to alcohol usage prior to 1968 such as would give the term “social drinker” a quantitative meaning.  To make assumptions regarding pre-1968 consumption would be “speculative”, said the tribunal. 

24.     In his submissions to me on behalf of the Repatriation Commission Mr Beech-Jones conceded that the material could support a reasonable hypothesis that Mr Elson had consumed the requisite quantity of alcohol over 25 years.  That period would have run from 1968 to 1993.  The date of clinical onset of Mr Elson’s colon cancer was, according to his treating doctor, in 1998 by which time he had suffered the disease for several months.

25. However, he submitted that there was insufficient material to support a reasonable hypothesis that there had been a material contribution from operational service in Vietnam to the consumption of that quantity of alcohol. He referred to s 196B(14) of the Act which was relied on by the Federal Court in Kattenberg (see [3] above). The court said that where in an operational service matter consumption of, or exposure to, an agent for a required number of hours or days is in issue, it is not necessary that it be suggested that the whole of that consumption or exposure took place during operational service. It is sufficient, in accordance with s 196(B)(14) of the Act, if the required consumption or exposure was contributed to in a material degree by the operational service.

26.     It does appear to me that the material supports a hypothesis that Mr Elson began drinking in Vietnam at a level that could in no way be described as social drinking, and that, pre-Vietnam, he had only drunk to a level that has been described as social drinking.  Mr O’Keefe’s evidence from Mr Parvin appears inconsistent with this.  However, the suggestion is that Mr Elson’s alcohol consumption in Vietnam rose but to “only” six drinks a day.  Comparing that to the other material from Mr O’Keefe relating to alcohol consumption by Australian troops in Vietnam it was a relatively moderate consumption level.

27.     The principle in Kattenberg has liberated decision-makers from having to find material that seems to quantify the amount of alcohol consumed during operational service in considering SoP factors such as factor 5(c).  Whatever the quantity of alcohol consumed at that time, so long as it is suggested to be at an increased rate compared to before operational service, and so long as that increase is attributable to the conditions of service, and so long as that increased consumption seems on the material linked to subsequent consumption necessary to satisfy the requirement for a total of 250 kilograms of alcohol consumed, then s 196(14) is satisfied.  The hypothesis posits a contribution stemming from operational service.

28.     I consider that the material before the tribunal suggests a connection between Mr Elson’s Vietnam service and his increased consumption of alcohol.  Dr Dean’s report dated 10 August 2000 is ambiguous when it refers to Mr Elson beginning to drink to forget and overcome his nervousness and anxiety.  This could refer to a time later than Mr Elson’s Vietnam service.  However, he could be repeating in that statement what Mr Elson had told him about the circumstances when he increased his drinking in Vietnam.

29.     Mr O’Keefe’s report identified factors affecting army men doing Mr Elson’s type of work as a military policeman that were especially conducive to alcohol problems.  It was used to relieve tension and because of a lack of alternative recreation opportunities.  Consumption was heavier among base camp personnel than among combat troops.  It was a particular problem among senior non-commissioned officers.  These occupied a difficult position between officers and men, had frequent personality clashes with both and, in social isolation, turned to drink for solace.  Military policemen such as Mr Elson were said to be commonly resented by soldiers and often had violent or threatening encounters with intoxicated soldiers on leave.  I believe this material suffices to suggest a connection between Mr Elson’s service in Vietnam and his increased resort to alcohol. 

30.     Mr Smith, for Mrs Elson, submitted that the habit of consuming more alcohol, once established in Vietnam, stayed with Mr Elson in his later life until he reduced his alcohol intake some time after he and Mrs Elson separated.  This is a credible element of the hypothesis advanced for Mrs Elson.

31. I conclude from this that the hypothesis raised is consistent with the requirements in factor 5(c) of the relevant SoP. There is thus a “reasonable hypothesis” for the purposes of ss 120(3) and 120A(3) of the Act.

(I)If the answer to (h) is yes, is the tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?

32.     This is the fourth step identified in Deledio ([10] above).

33.     I find nothing in the evidence presented to satisfy me beyond reasonable doubt that any of the factors required in the SoP were not present or that, in any more general sense, the condition causing Mr Elson’s death was not war-caused.

CONCLUSION

34.     I have decided that Mr Elson’s colon cancer was a war-caused disease.  As colon cancer was the cause of his death he died of a war-caused disease.  His dependant, Mrs Elson, therefore qualifies for a War Widow Pension with effect from 7 December 1998.

DECISION

35.     The decision under review is set aside.  The tribunal substitutes its decision that the applicant qualifies for a War Widow Pension with effect from 7 December 1998.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  22 September 2003
Date of decision  14 January 2004
Counsel for the Applicant         Mr Matthew Smith
Solicitor for the Applicant          Dibbs Barker Gosling, Lawyers
Counsel for the Respondent     Mr Robert Beech-Jones
Solicitor for the Respondent     Australian Government Solicitor