Gaulton and Repatriation Commission

[2001] AATA 250

DECISION AND REASONS FOR DECISION [2001] AATA 250

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/448

VETERANS'      APPEALS      DIVISION         )          
           Re      JOYCE EDITH GAULTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member Mr I. L. G. Campbell, MC, Member Assoc. Professor J. Maynard, Member           

Date28 March 2001

PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in its stead finds that the death of the late Walter Bryce Gaulton from secondary cardiomyopathy was war-caused.         

.…...(Sgd) B. H. Pascoe.........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether death war-caused – cardiomyopathy – whether satisfied factor of alcohol consumption – whether drinking war-caused
Veterans' Entitlements Act 1986
Statement of Principles – Instrument No. 93 of 1996 concerning cardiomyopathy

REASONS FOR DECISION

28 March 2001  Mr B. H. Pascoe, Senior Member            Mr I. L. G. Campbell, MC, Member        Assoc. Professor J. Maynard, Member   

1. This is an application to review a decision of the Veterans' Review Board ("the VRB") which affirmed a decision of the respondent that the death of the applicant's late husband was not related to service and therefore not war-caused.

2. At the hearing the applicant, Mrs Gaulton, was represented by Mr M. Croyle of counsel and the respondent by Mr A. Hall, an advocate with the Department of Veterans' Affairs. Oral evidence was given by Mrs Gaulton and Dr M. Holmes, a consultant physician. In addition to the documents provided by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975, the following documents were tendered by the respondent:

• Clinical notes of Dr M. Smith, the veteran's treating physician (Exhibit R1)

• Clinical notes of Dr M. Holmes (Exhibit R2)

• Medical records of John Fawkner Hospital (Exhibit R3)

• Transcript of VRB proceedings 26 August 1996 (Exhibit R4)

• Transcript of VRB proceedings 15 March 1999 (Exhibit R5)

• Medical opinion of Dr F. J. Morgan, Senior Medical Officer (R6)

• Reports of Dr A. Pitt, cardiologist (Exhibits R7 & R8)

• Report of Dr J. Federman, cardiologist (Exhibit R9)

• Report of Dr W. Stephens, Veterans' Affairs Medical Officer (Exhibit R10)

The following documents were tendered on behalf of the applicant:

• Statement by the applicant (Exhibit A1)

• Report of Dr E. Cole, psychiatrist (Exhibit A2)

• Reports of Dr M. Holmes (Exhibits A3, A4 & A5)

• Report of Dr M. Smith (Exhibit A6)

1. The veteran, Mr W. B. Gaulton, died on 21 March 1997 with the cause of death certified by Dr Holmes as "Cardiac Failure – 3 years, Ischaemic Heart Disease – 5 years".  The veteran served in the Australian Army from 3 November 1939 to 20 August 1945 in the Middle East, Crete, Greece and New Guinea.  The whole of his service was operational service under the Veterans' Entitlements Act 1986 ("the Act").  Conditions of hiatus hernia, deafness and carcinoma of the oesophagus had been accepted as war-caused.  A claim by the veteran in 1996 for Mitral Valve Prolapse had been rejected by the respondent.  In May 1997, the applicant lodged a claim for widow's pension on the grounds that the veteran's death was war-caused.  Before the VRB, it was submitted that the inability to undertake moderate physical activity resulting from either obesity from service related beer drinking or from the accepted condition of carcinoma of the oesophagus had led to death from ischaemic heart disease.

2. Mrs Gaulton said that she met the late veteran before his first tour of New Guinea in 1943 and they married in December 1944.  He was a regular drinker when she met him.  He had been brought up in a strict environment where alcohol and tobacco were prohibited in the family home but he had told her that he had commenced drinking and smoking during service as a result of peer pressure and to alleviate stress.  Without great detail, he had told her of stressful experiences with enemy action in Greece and Crete, of ships being hit and sunk and friends taken as prisoners of war.  Mrs Gaulton stated that he had nightmares and "gone back" to the war years with a horrible dream.  Mrs Gaulton said that the veteran ceased smoking shortly after discharge.  While he did not drink daily when they were first married, his drinking progressively increased until, by the end of the 1950s, he was drinking every night, having at least one bottle of beer at home after drinking with friends prior to arriving home.  Mrs Gaulton said that his weight increased, reaching an estimated 15½ stone by the 1970s.  Immediately after service, Mr Gaulton was a sales representative and was away during the week.  Mrs Gaulton said that she knew he was drinking while away.  He was a member of a rifle club at Williamstown where much beer was consumed.  Mrs Gaulton said that she objected to the quantity of beer that he consumed and with him maintaining a refrigerator in the garage well-stocked with beer.  She stated "he always had beer in the home".  In 1968, Mr Gaulton was employed as a hotel manager in a country town where Mrs Gaulton was aware that he drank regularly each evening and often during the day.  Subsequently, he worked for a security company in armoured cars.  His habit was to call in at the Bowling Club after work each day and drink with friends for one or two hours then have at least one bottle of full strength beer at home.

3. Mrs Gaulton said that her husband's health had been good until the 1970s when he was hospitalised with anaemia.  She said that there was a view that this was linked with the hiatus hernia he had suffered previously.  After suffering from shortness of breath and with concerns about his heart beat, Mr Gaulton consulted Dr Smith in the late 1980s and mitral valve incompetence was diagnosed.  In 1992 he suffered a major haemorrhage and was diagnosed with cancer of the oesophagus and an ulcer.  In 1993 he underwent surgery.  His weight reduced to 11 stone until about 1975 when he was admitted to hospital suffering acute breathlessness and lethargy.  His weight decreased to some 7½ to 8 stone.

4. Dr Holmes commenced treating Mr Gaulton on his admission to hospital in 1995.  At that time the view of Dr Holmes was that Mr Gaulton was suffering severe cardiac failure with its underlying aetiology appearing to be global hypo-kinesis due to ischaemic heart disease.  In reports provided for the purpose of this application, Dr Holmes stated that Mr Gaulton:  "…clearly had a cardiomyopathy, which had been present for some years", "…was at least in part caused by ischaemic heart disease…" and "…this seventy-five year old man with a dilated cardiomyopathy and intermittent cardiac failure, on the basis of probabilities, was likely to be suffering from ischaemic heart disease".  While Dr Holmes had not taken a history of heavy drinking, he considered that the statement by Mrs Gaulton meant that it was "likely that his heavy alcohol intake significantly contributed to his cardiomyopathy".  The doctor said that it was not unusual for patients to understate their alcohol consumption.  He did not believe that the mitral valve prolapse or the cancer of the oesophagus had any direct relationship with the cardiomyopathy.

5. Medical reports tendered by the respondent concentrated primarily on the veteran's condition of mitral valve prolapse and cancer of the oesophagus and their effect on his ultimate heart condition.  Neither Dr Morgan nor Dr Stephens believed that there was sufficient evidence to show that the veteran suffered from ischaemic heart disease.  None of these reports referred to the opinion of Dr Holmes.

6. On the evidence of Dr Holmes, who was the treating physician in the latter years of the veteran's life, we are satisfied that the appropriate diagnosis of the cause of death was secondary cardiomyopathy. Section 120(1) of the Act provides for the Tribunal to determine that death of the veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides for the Tribunal to be so satisfied if the material before it does not raise a reasonable hypothesis connecting the cause of death with the circumstances of the veteran's operational service. Under section 120A, if there is in force a Statement of Principles ("SoP") issued by the Repatriation Medical Authority in relation to the condition suffered by the veteran, then the hypothesis is reasonable only if the SoP upholds such hypothesis. The relevant SoP in this case is that concerning cardiomyopathy (Instrument No. 93 of 1996). The SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. In this case the only factor relied upon was factor 5(b):

   "(b)for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; …"

7. It was submitted for the applicant that factor 5(b) was satisfied with the clinical onset of cardiomyopathy being in 1992 or 1993.  It was said that the evidence of Mrs Gaulton demonstrated that the drinking by the veteran resulted from war service and that the required level of consumption had been met.  For the respondent it was submitted that the level of drinking required by the SoP had not been met and that Dr Holmes had no history of any excessive drinking habit of the veteran.  The respondent was prepared to concede that the veteran's drinking was service related.  There was some dispute as to the quantity of beer consumption required to meet the SoP factor and whether 250 kg over 10 years equalled two or three bottles per day.

8. The SoP provides that alcohol is measured utilising the Australian Standard of 10 grams of alcohol per standard drink. According to our calculations, 250 kg of alcohol within a ten year period equals 25 kg per year, approximately 500 grams per week or approximately 70 grams per day. Assuming four standard drinks per 750 ml bottle of beer, this means that the veteran would have been required to drink the average of approximately two bottles per day over a ten year period. On the evidence of Mrs Gaulton of the drinking habits of her late husband from the late 1950s to, at least, the 1970s, we cannot be satisfied that his consumption over a ten year period was not at least equal to that required level of consumption. It follows that factor 5(b) of Instrument No. 93 of 1996 is satisfied. We find, also, that the veteran's beer drinking was war-caused so that, pursuant to section 120(1) of the Act, the death of the veteran was war-caused.

9. It follows that the decision under review should be set aside and in its stead the Tribunal finds that the death of the veteran from secondary cardiomyopathy was war-caused.

   I certify that the eleven (11) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member
   Mr I. L. G. Campbell, MC, Member
   Assoc. Professor J. Maynard, Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  14 February 2001
   Date of Decision  28 March 2001
   Counsel for the Applicant        Mr M. Croyle
   Solicitor for the Applicant         Williams Winter & Higgs
   Solicitor for the Respondent    Mr A. Hall, departmental advocate