Hall and Repatriation Commission
[2007] AATA 1514
•6 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1514
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N06/354
VETERANS’ APPEALS DIVISION ) Re RUTH HALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Rear Admiral AR Horton AO, MemberDate6 July 2007
PlaceSydney
Decision The decision under review is affirmed. ...................[sgd]...........................
Dr J D Campbell
Member
CATCHWORDS
Veterans’ Entitlements – application for war widow’s pension – kind of death – veteran’s death from cerebrovascular accident - relationship to service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 8, 13, 120 and 120B
CASELAW
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hill (2002) 69 ALD 581
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
6 July 2007 Dr J D Campbell, Member
Rear Admiral A R Horton AO, Member1.
Mr Butler served in the Royal Australian Navy between 4 March 1948 and
14 June 1973. Mr Butler had many periods of operational service, with the first in Korean waters during 1950, and the last in Vietnamese waters during 1969. Mr Butler also completed a period of eligible defence service between 7 December 1972 and 14 June 1973.
2. Mr Butler died on 17 December 2002. The causes of death recorded on the death certificate were acute lumbar pneumonia (12 hours), aspiration, dysphagia (months), cerebral vascular disease (years), and cardiomyopathy, chronic renal failure, thyrotoxicosis (years).
3. Mrs Hall is the widow of Mr Butler. They married on 20 March 1967. Mrs Hall made a claim for a widow’s pension on 27 May 2005. The claim stated that Mr Butler’s death was caused or contributed to by his high consumption of alcohol, and that this drinking habit had been caused and/or contributed to by peer pressure from other Navy personnel. The claim was denied by a delegate of the Repatriation Commission on 24 June 2005 and that decision was affirmed by the Veterans’ Review Board on 3 March 2006.
Issues
4. The relevant issues in this matter are:
(a) What was the kind of death suffered by Mr Butler?
(b)Is there a hypothesis, pointed to by the material, linking Mr Butler’s kind of death with his service?
(c)Is there a Statement of Principles (“SoP”) applicable to the kind of death suffered?
(d)What, if any, factor contained within the relevant SoP is applicable?
(e)Does the claim succeed?
Decision
5. For the reasons outlined later in this decision we conclude that:
(a)The kind of death suffered by Mr Butler was that of cerebrovascular disease.
(b)There is material pointing to a hypothesis linking Mr Butler’s kind of death to alcohol or, in the alternative, to alcohol causing or contributing to hypertension and/or cardiomyopathy. A third alternative is that either of the latter two conditions pre-existed the development of atrial fibrillation, which caused or contributed to the death from cerebrovascular disease.
(c)The applicable SoPs in this matter are those concerning cerebrovascular accident:
i.Instrument No. 51 of 2006 - currently in force.
iiInstrument No. 52 of 1999, as amended by Instrument No. 30 of 2002 and Instrument No. 57 of 2003 - in force at the time of the reviewable decision.
(d)The relevant factors are:
SoP Instrument
Paragraph
i
Instrument No. 51 of 2006 concerning cerebrovascular accident
6(a), 6(f), 6(o)(xi).
ii
Instrument No. 52 of 1999, as amended by Instrument No. 30 of 2002, as amended by Instrument No. 57 of 2003 concerning cerebrovascular accident
5(a), 5(e), 5(k)(v)
iii
Instrument No. 35 of 2003, as amended by Instrument No. 3 of 2004 concerning hypertension
5(b)
iv
Instrument No. 19 of 1998, as amended by Instrument No. 22 of 2002 concerning cardiomyopathy
5(b)
v
Instrument No. 19 of 2003 concerning atrial fibrillation
5(d), 5(g), 5(j)
(e)The claim does not succeed. A hypothesis postulating that Mr Butler’s kind of death was caused and/or contributed to by the consumption of alcohol in specific quantities was found to be reasonable. However, we were not satisfied beyond reasonable doubt that such alcohol consumption was war-caused.
Background Material
6. On 13 June 1998 Mr Butler completed a claim form where he asserted that hypertension and atrial fibrillation were war or defence-caused conditions, in that they were a result of his war service and drinking problems.
7. On 10 July 1998 Dr Gross, Mr Butler’s attending general practitioner, detailed the following information:
(a)hypertension - commenced 1980; labile; treated; issue of cardiomyopathy.
(b)atrial fibrillation - commenced 1996; episode of left ventricular failure in July/August 1997, treated and continued monitoring; tired on exertion, with shortness of breath.
(c)alcohol abuse - long history of alcoholism; January to June 1998 off alcohol for medical reasons, then one to two schooners per night; unsteady gait; tremor of hands; poor concentration and sweating; difficulty climbing stairs.
8. In a report dated 15 August 1996, Dr Friedman, a Consultant Cardiologist, stated that Mr Butler suffered from longstanding hypertension, chronic atrial fibrillation, alcohol abuse and gout. Apart from sweaty palms and a resting tremor of his outstretched hands, Dr Friedman noted that there were no other features of thyrotoxicosis. Dr Friedman also noted that there was evidence of central, as well as hemispheric cerebellar degeneration, namely intention tremor and poor tandem gait. In a further report dated 22 August 1996, Dr Friedman noted that Mr Butler’s fibrillation had reverted to sinus rhythm. Dr Friedman’s report, dated 7 November 1996, also noted a discrete infarct in the postero-lateral myocardium. In August 1997, Dr Friedman reported that Mr Butler had required electrical cardioversion to revert to sinus rhythm. Mr Butler’s hospital admission records of 7 August 1997 noted cardiomyopathy, possibly ethanol related. On 10 July 1998, Dr Gross reported that Dr Friedman believed it was less likely to be an alcohol related cardiomyopathy.
9. On 13 July 1998 Mr Butler completed an alcohol consumption questionnaire. In the questionnaire he stated that he commenced drinking alcohol in 1949 because his, “Navy mates enticed me when on shore leave…I acquired a taste for it.” Mr Butler stated that he would drink six or more schooners of beer plus scotch every day when on shore leave or in depot. Mr Butler also noted that when he came out of the Navy in mid-1973 he increased his intake to 10 plus schooners of beer per day, stopping only in November 1997 for six months on medical advice. Thereafter, Mr Butler noted that he continued to consume a couple of schooners per day.
10. In a report dated 27 July 1998, Dr Dinnen, a Consultant Psychiatrist, detailed Mr Butler’s service experiences as described to him by Mr Butler. Dr Dinnen recorded that Mr Butler drank when he went ashore because of monotony and peer pressure; that it was easier to get ashore daily after he became a Chief Petty Officer; and that he consumed seven or eight schooners of beer and two or three scotches daily. Dr Dinnen also noted that Mr Butler did not think that there was any particularly traumatic experience during his service which affected him. Further, Dr Dinnen noted that Mr Butler was unable to recall any particularly significant nervous reactions during his service, other than being on “edge all the time” when in Korea.
11. Dr Dinnen concluded that Mr Butler did suffer from psychoactive substance abuse. However, the relationship to service was not clear. Relying upon the account given to him by Mr Butler, Dr Dinnen was of the view that despite extensive operational service, which Mr Butler appeared to take well in his stride, Mr Butler coped well through the years. In conclusion, Dr Dinnen stated that the connection to service appeared to be through association.
Mrs Hall’s Evidence
12. Mrs Hall told the Tribunal that she and Mr Butler were children together; that he did not drink before he joined the Navy; and that between the early 1950s and early 1965 she had no contact with him. In early 1965 they met again. At that stage he was drinking, and would bring bottles of beer with him to her house. He would go to the RSL, and they tended not to go out very much. Mrs Hall said they were married in 1967 and for nine months after their marriage they lived in naval quarters at Jervis Bay. Mrs Hall stated that at this time Mr Butler was drinking about 10 schooners of beer a day, at lunch and after work in the mess, and at home in the evenings. Mrs Hall stated that she never saw Mr Butler intoxicated, but they separated after one episode of alcohol-related domestic violence while living at Maroubra in the early 1970s.
13. Mrs Hall stated that they remained in a relationship, while living separately, when Mr Butler was ashore. During the period until 1997, Mrs Hall stated that Mr Butler continued to drink similar quantities of beer. In 1997, Mrs Hall stated that Mr Butler had a health scare (“stroke”), that he stopped drinking for a few months, and thereafter drank approximately two stubbies a day. It was around this time that Mrs Hall moved back to live with and care for Mr Butler.
14. Mrs Hall stated that Mr Butler did not talk about the conditions he experienced at sea, with his aim in life appearing to be wanting to have a drink. When talking about Korea, Mrs Hall stated that Mr Butler commented it was “not very good”, that he was “not happy about the war” and that Korea was a “waste of young lives” in relation to the loss of a couple of mates.
Legislative Context
15. Pursuant to section 13(1) of the Veterans’ Entitlements Act 1986 (“the Act”) the Commonwealth, subject to the Act, is liable to pay a pension to a dependent where the death of the veteran was war-caused.
16.
Section 8(1) of the Act provides that a veterans’ death is war-caused if it,
in effect:
·resulted from an occurrence on operational service;
·arose out of or was attributable to eligible war service;
·resulted from an accident while travelling to and from duty;
·was due to an accident that would not have occurred, or a disease that would not have been contracted, but for eligible war service; or
·was due to a condition that was contributed to in a material degree by, or was aggravated by, eligible war service.
Consideration and Findings
17. In this matter, both parties elected to focus their attention on the issues of alcohol consumption in the period prior to the clinical onset of cerebral ischaemia. We acknowledge this approach, as consideration of alcohol consumption is intrinsic to other hypothesised links to service involving hypertension, cardiomyopathy and atrial fibrillation. While we note the quantities of alcohol consumed and the time frame in which it was consumed, consideration of whether or not alcohol consumption is a war-caused condition will determine a similar outcome in each of the hypotheses.
Kind of death
18. We have considered all the material before us, and in particular the reports of the treating doctor, Dr Gross; the treating cardiologist, Dr Friedman; and the death certificate. From this evidence we note that there is material pointing to the clinical onset of hypertension in 1980 (Dr Gross); material pointing to the clinical onset of cerebral ischaemia in 1996 (Dr Friedman); and material pointing to the clinical onset of atrial fibrillation in 1996 and cardiomyopathy in 1997 (Dr Friedman). While we note that thyrotoxicosis and chronic renal failure are mentioned in the death certificate, a careful analysis of all the evidence failed to elicit any further material on either of these two issues.
19. We are satisfied, on the balance of probabilities, that the kind of death suffered by Mr Butler was a cerebrovascular accident, with clinical evidence of cerebral ischaemia being noted by Dr Friedman in 1996. (Repatriation Commission v Hancock (2003) 37 AAR 383 considered and applied). In so finding, reliance was placed on the death certificate and an analysis of the available clinical opinion.
THE Hypothesis
20. The hypothesis postulated by counsel for Mrs Hall was that Mr Butler had a drinking habit; that this habit commenced during service and remained with him for the remainder of his life; and that he consumed at least seven schooners of beer a day in the six months prior to the clinical onset of cerebrovascular accident in 1996. We are satisfied that there is material pointing to each element of the hypothesis, and in so doing nominate the evidence of Mr Butler, Mrs Hall and the clinical opinions of Drs’ Dinnen, Mattick and Friedman.
Statement of Principles
21. The relevant SoP in this matter is Instrument No. 51 of 2006 concerning cerebrovascular accident. Instrument No. 52 of 1999, as amended by Instrument No. 30 of 2002 and Instrument No. 57 of 2003, was the instrument current at the time of the primary decision (24 June 2005). Both instruments concern cerebrovascular accident.
22. The relevant SoPs for other possible hypotheses not actively pursued during the hearing are:
·Instrument No. 35 of 2003 concerning hypertension.
·Instrument No. 19 of 2003 concerning atrial fibrillation.
·Instrument No. 19 of 1998 concerning cardiomyopathy.
The Relevant Factors
23. SoP Instrument No. 51 of 2006 concerning cerebrovascular accident nominates the following relevant factors:
“having hypertension at the time of the clinical onset of cerebrovascular
accident…” – (6)(a)
“drinking an average of at least 250 grams of alcohol per week, for at least
the one year before the clinical onset of cerebrovascular accident…” – (6)(f)
“having a potential source of cerebral embolus [defined to include “atrial
fibrillation (intermittent or sustained)” in paragraph 9(f)] at the time of the
clinical onset of cerebrovascular accident…” - 6(o)(xi)
24. SoP Instrument No. 52 of 1999, as amended, concerning cerebrovascular accident includes a similar factor concerning hypertension – (5)(a); a similar factor concerning atrial fibrillation – (5)(k)(v); and a similar factor concerning the consumption of alcohol – (5)(e).
25. SoP Instrument No. 35 of 2003 concerning hypertension nominates a relevant factor:
“consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension.” – (5)(b)
26. SoP Instrument No. 19 of 1998 concerning cardiomyopathy nominates one relevant factor, namely:
“for men, drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy [defined paragraph 7]” – (5)(b)
27. SoP Instrument No. 19 of 2003 concerning atrial fibrillation nominates these relevant facts, namely:
“suffering from cardiomyopathy at the time of clinical onset of atrial fibrillation…” - (5)(d);
“the presence of hypertension at the times of the clinical onset of atrial fibrillation…” – (5)(g)
“drinking at least 250 kilograms of alcohol within a 10 year period within the 15 years immediately before the clinical onset of atrial fibrillation…” – (5)(j)
Is the Hypothesis Reasonable?
28. In determining whether the hypothesis is reasonable it is necessary to consider all the evidence and assess whether there is material pointing to each of the essential elements nominated in the factors as creating the causal relationship with service (Repatriation Commission v Hill (2002) 69 ALD 581 considered and followed). Factor (6)(f), in SoP Instrument No 51. of 2006 concerning cerebrovascular accident, was relied upon by counsel for Mrs Hall.
29. In addressing this factor, we observe that there is material pointing to each essential element, namely:
·material pointing to Mr Butler drinking 250 grams of alcohol per week, including the evidence of Mr Butler in the alcohol questionnaire (seven to ten schooners of beer a day from 1973 onwards, that is, 735 – 1050 grams of alcohol consumed per week); the evidence of Mr Butler as recorded by Dr Dinnen; and the evidence of Mrs Hall and her recounting to Dr Mattick;
·material pointing to the clinical onset of cerebrovascular accident in 1996, namely material within the clinical opinion of Dr Friedman;
·material pointing to the reduction of alcohol consumption for periods post clinical onset of cerebrovascular accident, and material associated with cardiac abnormalities including atrial fibrillation and cardiomyopathy.
30. With material pointing to, and being congruent with each essential element of the factor, we are satisfied that a reasonable hypothesis has been established.
Does the Claim Succeed?
31. In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court stated at 571:
“If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
32. We are also mindful of what the Full Federal Court stated in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 - 98:
“The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
33. In pursuit of our task as outlined in the preceding 2 paragraphs, we note that Mr Butler had extensive periods of operational service during the Korean war, the Malayan emergency and the Vietnam war. We also note the length of his service (25 years) and his progress and promotion to Chief Petty Officer by 1955. We observe from the records that he suffered an episode of alcoholic gastritis in 1970.
34. In addressing the issue of alcohol intake, we note the evidence of Mr Butler that he commenced drinking alcohol in 1949 because, “my Navy mates enticed me when on shore leave. I acquired a taste for it”. Further, we note Mr Butler’s statement that after the period of commencement he would drink six or more schooners of beer and scotch daily when on shore leave or when in depot.
35. We note that Mr Butler recounted a similar history of commencement and early consumption of alcohol to Dr Dinnen. We also observe that Mrs Hall, whilst being acquainted with Mr Butler in his primary school years, did not have any further association with him until 1965.
36. From this material, we conclude that Mr Butler commenced drinking alcohol in 1949 for reasons that he described and mentioned above. We are satisfied that such occurrence has a temporal association with his service.
37. Further, from the material in evidence, we note that Mr Butler continued to consistently drink alcohol throughout his service. Mrs Hall stated that during their courtship, and when posted to Nowra, Mr Butler was drinking in the order of 10 schooners of beer a day. We observe that Mr Butler, in his alcohol questionnaire of 13 July 1998 indicated that his consumption of alcohol increased to 10 plus schooners of beer per day upon leaving the service in mid-1973. According to the questionnaire, his consumption remained at that level until mid-1997 when, after a period of abstinence for six months (on medical advice), he reverted to one to two schooners of beer per day.
38. In addressing the issue of alcohol consumption, both Dr Dinnen (Consultant Psychiatrist) and Professor Mattick (Consultant Psychologist) agreed that Mr Butler suffered from, and met the criteria, for the diagnosis of alcohol dependence. Both clinicians stated that the condition of alcohol dependence had been present for many years, with Professor Mattick stating that it had been present since the mid 1950s. We also note that both clinicians were unable to define a relationship between alcohol dependence and Mr Butler’s service, as evidenced by:
“Whether he suffered a severe stressor remains unclear to me… I do not have any information which makes me confident that he did suffer a severe stressor prior to the onset of alcohol dependence” - Professor Mattick.’s report dated 1 November 2006.
“The diagnosis of psychoactive substance abuse is certain..The relationship to service is not clear, except through the factors mentioned by the patient – that is peer pressure and the nature of service life. There is no doubt that he did have extensive service, including significant operational service, but from the account he gave to me, it appears that he took this well in his stride and has coped well through the years. The connection to service appears to be through association, as the patient has claimed” - Dr Dinnen’s report dated 27 July 1998.
“I believe there is a reasonable hypothesis to connect his chronic alcohol abuse/dependence to service by way of exposure to stressful experiences during operational services. The widow’s comments about his reference to Korean service is consistent with that view” - Dr Dinnen’s report dated 24 August 2006.
39. We also refer to Mrs Hall’s evidence in which she spoke of Mr Butler’s aim in life as to be always wanting to have a drink. Further, we note her evidence about Mr Butler’s comments in relation to his Korean service as, “not very good”, “not happy about the war” and a “waste of young lives”.
40. In addressing all the evidence about Mr Butler’s alcohol intake we find the following facts:
·There is a temporal association between Mr Butler’s commencement of drinking and his service - in his own words he was “enticed to drink by his mates” in 1949;
·The commencement of Mr Butler’s drinking was in 1949, this being a period neither covered by operational service nor eligible defence service;
·Mr Butler continued to drink alcohol because he “had acquired a taste for it”;
·After separation from service in mid 1973, Mr Butler increased his alcohol consumption to 10 plus schooners of beer a day;
·This pattern of drinking continued until the period 1996-1998 when, on medical advice, he restricted his drinking intake. There was a period of abstinence for some months. Thereafter, Mr Butler continued drinking at the rate of one to two schooners of beer per day up until the time of his death in 2002;
·The quantity of alcohol consumed was in the order of one kilogram a week (100 standard drinks) from 1973 until 1996 - the time of clinical onset of his cerebrovascular accident (cerebral ischaemia was noted by his attending physician, Dr Friedman);
·A diagnosis of longstanding alcohol dependence was made by both Dr Dinnen and Professor Mattick;
·
Neither Dr Dinnen or Professor Mattick were able to identify in
Mr Butler’s periods of operational or defence service, particular events which could be objectively defined or perceived as severe stressors and/or psychosocial stressors, thereby providing the necessary link between Mr Butler’s alcohol dependence and his service;
·Apart form the temporal association with the commencement of Mr Butler’s alcohol consumption, careful examination of all the material does not provide any evidence of a particular event/occasion during his operational service or defence service that was of particular concern to Mr Butler. This remains the case, despite Mr Butler having had the opportunity to identify a particular event/occasion in his 1998 claim, and his denial of such an event(s) when questioned by Dr Dinnen in July 1998. This was again considered in Dr Dinnen’s August 2006 report;
·Despite the lack of any specific information, and even denial by Mr Butler of particular events, Dr Dinnen believed that Mr Butler’s service life must have involved exposure to severe stressors and/or psychosocial stressors. However, in the absence of particular evidence of events, such a view, in our opinion, involves speculation and/or conjecture and can be given no weight.
·The specific evidence before us involves Mr Butler stating “I acquired a taste for it” and that “When I came out of the Navy in mid 1973 it increased to 10+ beers per day”.
41. We have found a set of particular facts. We are satisfied beyond a reasonable doubt that Mr Butler consumed in the order of one kilogram of alcohol per week between 1973 and the clinical onset of cerebral vascular accident in 1996. In so finding, we are satisfied that the quantity component for alcohol consumption is within the nominated time frame in relation to factor 6(f) of SoP Instrument No. 51 of 2006.
42. In addressing the issue of whether the alcohol consumption has a causal relationship to service, we are satisfied beyond reasonable doubt that no such causal relationship to service existed. In so stating, we accept that Mr Butler’s alcohol consumption enjoyed a temporal relationship to service, as indeed his increased continued consumption post-service could be said to have a temporal relationship to his post-service life. We have been mindful that a thorough examination of all the material facts found to exist in this matter has failed to crystallise any event and/or circumstance which could be relied upon to suggest or indicate that Mr Butler’s operational and/or defence service either caused and/or made a contribution to his consumption of alcohol. Indeed, despite Mr Butler having had the opportunity of telling his story about alcohol consumption in relation to his service in the July 1998 claim, and during a consultation with Dr Dinnen in July 1998, there only remains his statement that, “I acquired a taste for it” after his introduction to alcohol in 1949. This is further encapsulated by the comment he made in 1998 that “unfortunately I still like a drink”, and in Mrs Hall’s statement that “his aim in life appeared to be wanting to have a drink”.
43. In finding beyond reasonable doubt that there is not a causal connection, either by way of direct causation and/or contribution, between Mr Butler’s alcohol consumption and his operational and/or defence service, the consequence is that a fact necessary to support the particular hypothesis has been disproved beyond reasonable doubt. Such a finding involves any hypothesis involving alcohol consumption by Mr Butler as a primary element. In this matter it includes all the possible hypotheses nominated, involving consideration of alcohol as the causative link with hypertension, cardiomyopathy and atrial fibrillation, with both hypertension and atrial fibrillation being factors nominated as providing a causal connection between cerebrovascular accident and service.
44. In the circumstances as described, we are satisfied beyond reasonable doubt that Mr Butler’s kind of death from cerebrovascular accident was not war-caused. It follows that Mrs Hall’s claim for a war widow’s pension must fail, with the decision under review being affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member, and Rear Admiral A R Horton AO, Member
Signed: ...............[sgd].................................................................
AssociateDate/s of Hearing 3 May 2007
Date of Decision 6 July 2007
Counsel for the Applicant Ms E Wood
Solicitor for the Applicant Ms J Pollock
Solicitor for the Respondent Mr T O'Reilly
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