Harding and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 920

Harding and Repatriation Commission (Veterans’ entitlements) [2015] AATA 920 (30 November 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/3734
Re	Maureen Harding
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	30 November 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member McCabe

Catchwords

VETERANS AFFAIRS – widow’s pension entitlement – whether stressors arose in veteran’s operational service – material does not support applicant’s hypothesis – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Statement of Principles concerning Alzheimer-type dementia No. 22 of 2010

Statement of Principles concerning hypertension No. 63 of 2013

REASONS FOR DECISION

Senior Member McCabe

30 November 2015

1. Mrs Maureen Harding claimed the widow’s pension in 2013 following the death of her husband, Mr William Harding, on 27 September 2012. The applicant said Mr Harding’s death was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (the Act) because he developed hypertension (high blood pressure) as a consequence of stressful experiences during the course of his operational service in the Navy in the early 1960s. The Repatriation Commission rejected the claim.

2. I have decided to affirm the decision under review. I explain my reasons below.

   Background to the claim

3. The applicant met Mr Harding in 1986. Mr Harding had been married before: he and his first wife, Mrs Arthurson, met in 1960 and married in 1963. Both the applicant and Mrs Arthurson gave evidence at the hearing. I will have more to say about their evidence below.

4. The late Mr Harding enlisted in the Navy on 6 January 1958. He served on HMAS Parramatta, a destroyer escort, in the early 1960’s. He rendered operational service in the Far Eastern Strategic Reserve on three occasions while serving on the Parramatta. Those periods were:

   ·21 June 1962 to 23 August 1962;

   ·10 September 1962 to 2 October 1962; and

   ·9 May 1963 to 18 May 1963.

5. Mr Harding subsequently served aboard HMAS Melbourne when it collided with HMAS Voyager on 10 February 1964. Mr Harding was involved in the rescue effort that night, and recalled seeing dead bodies in the water: exhibit one at p 23. The applicant recalled her husband was obviously distressed by what occurred in that incident but she said he tended to ruminate more on his experience aboard the Parramatta. (I will have more to say about that experience below.) Mrs Arthurson, who was married to Mr Harding at the time of the Voyager disaster, said in her oral evidence that Mr Harding was very distressed by what he saw in the immediate aftermath of that terrible event. From 1964, Mr Harding served aboard submarines. Mrs Arthurson said Mr Harding was also very stressed by events during that period of his service. He was discharged from the Navy on 30 June 1970: exhibit 8.

6. Mr Harding suffered from a number of health problems during the course of his life. He experienced anxiety and Mrs Harding said he drank heavily while they were together.

7. The Commission accepted Mr Harding started drinking early in his naval career. It also accepted Mr Harding was drinking at least 300 mg of alcohol each week in the six months before the clinical onset of hypertension. The ultimate question is whether there is a causal connection between excessive drinking and Mr Harding’s operational service.

   The kind of death

8. The first step in the analysis required under s 120 of the Act is to determine the kind of death experienced by the late veteran. That inquiry turns on the death certificate dated 5 October 2012. The certificate was issued following the death of the veteran on 29 September 2012. The death certificate lists the causes of death as:

   ·sudden cardiac arrest;

   ·left lower lobe pneumonia;

   ·Alzheimer’s disease and hypertension.

9. For the purposes of this exercise, the kind of death was Alzheimer’s disease, which was associated with hypertension.

   The hypothesis

10. The applicant says Mr Harding’s Alzheimer’s disease and hypertension was linked to his service. The applicant says the hypertension was brought on by heavy drinking – and heavy drinking was a response to stress the veteran experienced while serving aboard the Parramatta in particular during the relatively short discrete periods in 1962 and 1963 when the ship was allocated to the Far Eastern Strategic Reserve. The stress arose in two ways, according to the applicant: firstly, there was a suggestion the Parramatta came into contact with hostile forces off the coast of Borneo; secondly, the late veteran was constantly worried about exposure to lethal leaks of high pressure steam that might occur in the engine room in the event of any damage, or an accident.

11. There must be material pointing to each step in the hypothesis. There is certainly material pointing to the late veteran drinking heavily before he became hypertensive, but I need to be satisfied there is material pointing to the late veteran drinking heavily in response to stressors experienced while he was on operational service with the Parramatta.

12. The late veteran signed a document called a ‘statement of events’ dated 10 August 2004 (exhibit 6). The statement referred to an incident when the ship’s main armament fired unexpectedly while Mr Harding was below deck in the engineering space. Mr Harding surmised the gunfire was in response to a threat. He was able to say the event must have occurred during operational service because he had a vague recollection of the vessel being near Borneo at the time. He said he experienced stress every time the guns were fired after that incident because he had been told superheated steam could be lethal if it escaped from damaged pipes. At the end of his statement, he said:

    These incidents caused me to smoke and drink alcohol quite heavily and continued throughout my service life and into my civilian life.

13. That statement suggests temporal and causal connections between the identified stressors aboard the Parramatta and Mr Harding’s increased drinking. The statement does not point to Mr Harding beginning to drink heavily later in his life only after he recollected the memory of his service on the Parramatta: this statement suggests he began drinking about the time he served on that ship in a direct and more or less immediate response to the stressors he experienced.

14. Mr Harding also completed an alcohol questionnaire in 2003. It is reproduced in exhibit one at pp 21-22. In that document, he suggests he began to binge drink when serving on the Parramatta in response to the stress associated with working in engineering spaces below the waterline. There is no mention of high pressure steam, although the brief entries in the questionnaire do not exclude the possibility that it was a concern. It is also unclear whether the stress of serving below the waterline arose during the discrete periods of operational service, or was a more-or-less consistent feature of his service on that vessel which predominantly occurred during non-operational service. The questionnaire goes on to say Mr Harding increased his drinking in February 1964 while on the Melbourne in the wake of the Voyager disaster, and that it increased again when he served aboard the submarines.

15. Other material offered in relation to Mr Harding’s drinking does not point to the applicant’s hypothesis. The applicant did not meet Mr Harding until 1986, so she cannot give direct evidence of his alcohol intake before that time. Mr Harding’s first wife, Mrs Arthurson, married him in 1963. Mrs Arthurson gave evidence at the hearing. She was unable to confirm how much Mr Harding drank before they married: she said she only saw Mr Harding on weekends when he was in port. She said sailors were not permitted to leave the base during the week. Even after they married, she said she was unsure of his alcohol intake because he did not drink at home and was away for months at a time. She said she did not doubt he consumed alcohol with his mates, but she described him as a moderate drinker in a questionnaire. (That evidence is not inconsistent with Mr Harding’s report of binge drinking on the ship, which is referred to in the questionnaire at p 22 of exhibit one.) She recalled in cross-examination that Mr Harding’s alcohol consumption visibly increased in 1966, which was after he began serving aboard submarines. (Mr Harding was posted to Scotland in 1964 where the Navy was taking delivery of a new Oberon class submarine.) She said Mr Harding found submarine service very stressful. She also recalled Mr Harding was deeply affected by his experience of the Voyager disaster. She said she did not recall Mr Harding discussing other aspects of his service. Mrs Arthurson did not mention Mr Harding being preoccupied with the dangers of a steam leak, or any other issues arising out of his service on the Parramatta. I note her oral evidence was consistent with the alcohol questionnaire she completed: exhibit 3.

16. The whole of the material does not point toward an encounter with hostile forces off Borneo. The Parramatta simply was not there, which calls into question how Mr Harding could be sure in his ‘statement of events’ that the stress he experienced when guns went off occurred whilst he was on operational service. Commodore Mulcare, a military historian, was called to give evidence. He commented on a written report dated 23 June 2004 prepared by another researcher that was based on the source material, including the Parramatta’s Reports of Proceedings and other official documents: exhibit 8. That material is inconsistent with the applicant’s contention that there was an encounter with an armed junk operated by hostile forces off Borneo.

17. In the circumstances, I am not persuaded the material points to the hypothesis for which the applicant contends. In particular, I am not satisfied the material points to the late veteran beginning to drink heavily in response to stressors experienced while on operational service with the Parramatta. He may have done – he says he did - but the material as a whole does not support the hypothesis. But nor does the material as a whole point to the drinking starting later in life in response to recollections of the stressors aboard the Parramatta. The material points to Mr Harding beginning to drink more heavily during his service on the Melbourne in the aftermath of the Voyager disaster, and even more heavily once he began stressful service aboard a submarine.

    Evaluating the applicant’s case

18. For the sake of completeness, I will address the rest of the applicant’s case. I will begin by identifying the relevant statements of principle issued by the Repatriation Medical Authority. They are:

    ·No 22 of 2010, which deals with Alzheimer-type dementia; and

    ·No 63 of 2013, which deals with hypertension.

19. The applicant says Mr Harding had hypertension at least 10 years before the clinical onset of Alzheimer-type dementia, which satisfies factor 6(g) of the Alzheimer’s statement of principle. The Commission accepts that was so. The applicant also says Mr Harding was consuming on average at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension – which satisfies factor 6(b) of the hypertension statement of principles. Again, the Commission agrees that was so. The question is whether there was a causal connection between the excessive drinking and the late veteran’s service.

20. I should say at once I accept Mrs Harding was an honest witness who did her best to assist the Tribunal. She said in her oral evidence that Mr Harding was a drinker in the years during which she knew him. She said he would occasionally tell her stories of his life in the Navy, especially after he became intoxicated. She said he tended to focus on the dangers associated with the escape of high pressure steam in the engineering space on the Parramatta. He repeatedly spoke about another sailor who had been injured in this manner. She said Mr Harding came back to this story regularly over a 30 year period: it was a consistent feature of his ruminations. During cross-examination, she admitted she was unclear as to whether her husband was on the same ship as the sailor he mentioned who had been injured by the leaking steam. Mrs Harding also agreed her husband occasionally mentioned the aftermath of the Voyager disaster when he pulled bodies from the water. She acknowledged he was obviously distressed by the memory of that terrible night but insisted he did not speak of that incident as frequently as he mentioned his fear of the high pressure steam escaping from damaged pipes. She also said in cross-examination that Mr Harding did not regularly refer to his experience on submarines. She recalled being told one story about the submarine breaking through ice, but otherwise Mr Harding had merely said the boats were cramped and uncomfortable.

21. I have already mentioned the evidence in the ‘statement of events’ and the alcohol questionnaire completed by Mr Harding. If, taken at face value, both documents point to a connection with service – but they do not describe the stressors in the same way, and the questionnaire in particular places rather more emphasis on the contribution of stressors experienced during his peace-time service. Even the ‘statement of events’ offers an uncertain connection with Mr Harding’s operational service because his admittedly vague recollection was informed by the timing of an event that did not happen.

22. That leaves the evidence of Dr Danesi, the applicant’s treating psychiatrist. Dr Danesi wrote two reports and gave evidence at the hearing. His first report is dated 4 March 2004. That report does not mention Mr Harding’s service aboard the Parramatta. Dr Danesi records Mr Harding describing stress arising out of the aftermath of the Voyager disaster and incidents while he served on submarines. The second report was prepared on 2 November 2004. That report followed an unsuccessful application to the Repatriation Commission and an unsuccessful appeal to the Veterans’ Review Board. The report notes:

    When seen in August 2004, [Mr Harding] said he lost his case with the Department of Veterans’ Affairs. He wondered whether his experience on the Parramatta would help in his appeals process.

23. Dr Danesi went on to note: “The incidents described on the Parramatta [were] no where near at the level of severity of the other incidents described”. Dr Danesi went on to note diplomatically that Mr Harding:

    is strongly of the opinion the stressors of the shells going off and not knowing whether any of them may come through the side was very real and distressing to him. When he was on HMAS Parramatta, in his early twenties, he attributes significant levels of anxiety as one of the reason[s] for increasing his alcohol consumption. His excessive drinking, irritability and excessive worry were interrelated factors in the loss of his marriage. One may postulate the stressors on the HMAS Parramatta were instrumental stressors for the development of his alcohol abuse and onset of the generalised anxiety disorder.

24. Those remarks do not offer a compelling endorsement of Mr Harding’s account. The fact remains Dr Danesi took a quite different history in his second report that was provided in response to an unsuccessful appeal – indeed, the history was explicitly tailored to assist the appeals process. Dr Danesi was asked about that in the course of his oral evidence. He pointed out the consultations that led to the preparation of those reports occurred over a decade ago, and he had not retained clinical notes. He said he independently recalled Mr Harding expressing concerns about the high pressure steam when he came back following the unsuccessful outcome in his earlier application. Dr Danesi said it was not uncommon for sufferers of post-traumatic stress disorder (PTSD) to have fragmented memories and uneven recall of events – although I note Dr Danesi diagnosed Mr Harding with generalised anxiety disorder and alcohol abuse rather than PTSD.

25. I am troubled by the apparently self-serving changes that Mr Harding made to his history. Dr Danesi did not offer a convincing explanation for the change: indeed, his second report all but points out the self-serving nature of the revised history. Given the length of time since those consultations and reports, I think Dr Danesi’s recollection of what Mr Harding said or meant should be treated with caution.

26. Even if I accepted the applicant’s case was capable of satisfying the requirements of the relevant statements of principles, I am satisfied beyond reasonable doubt that there is no sufficient ground for determining there was a causal connection between Mr Harding’s experience of stressors during the course of operational service on the Parramatta and a significant increase in the consumption of alcohol leading or contributing to the development of hypertension. The bulk of the material I have discussed referred to Mr Harding’s peacetime service aboard the Melbourne (which included the aftermath of the Voyager disaster) and peacetime service on submarines as the real sources of stress that prompted significant increases in alcohol intake. While I acknowledge there are some references to Mr Harding increasing his alcohol consumption in response to stressful experiences while he was on the Parramatta, the evidence simply does not provide sufficient grounds for finding those incidents occurred on operational service as opposed peacetime service.

    Conclusion

27. The decision under review is affirmed.

28.     I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 30 November 2015

Date of hearing	22 July 2015
Counsel for the Applicant	Mr Anthony Harding
Advocate for the Respondent	Mr K Rudge, Department of Veterans’ Affairs