Hehir and Repatriation Commission - [2001] AATA 33

DECISION AND REASONS FOR DECISION [2001] AATA 33

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/275

VETERANS' APPEALS DIVISION         )
           Re      ERIC HEHIR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date18 January 2001
PlaceCanberra

Decision      The decision under review is affirmed.
  ...............(Sgd).................
  Pamela Burton
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – claim that hypertension and ischaemic heart disease war-caused – whether stressful events contributed to psychoactive substance abuse or dependence – decision affirmed.

LEGISLATION
Veterans' Entitlements Act 1986

AUTHORITIES
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

18 January 2001 Pamela Burton, Senior Member

This is an application by Mr Eric Hehir (the "veteran") for review of a decision made by the Repatriation Commission (the "respondent") dated 9 February 1996. That decision accepted the veteran's claims for bilateral sensorineural hearing loss and chronic solar skin damage but refused his claims for hypertension and ischaemic heart disease. On 25 August 1998 the Veterans Review Board affirmed the decision under review.
The hearing took place on 11 December 2000. Mr Paul Crabb represented the veteran and Mr Stephen Modder represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). The tribunal heard evidence from the veteran, Mrs Joyce Hehir, the wife of the veteran, and Ms Wendy Dignand, psychologist. The parties lodged written submissions after the hearing concluded.
The veteran lodged a claim for treatment and disability pension under the Veterans' Entitlements Act 1986 ("the Act") which was received by the respondent on 3 October 1995 (T6). The claimed conditions were in respect of "hypertension", "coronary heart disease", "hearing" and "skin cancer" (T6, p.42). The claims with respect to hypertension and ischaemic heart disease were refused on the ground that these conditions were not war-caused. The veteran's rate of pension was assessed under "Guide to the Assessment of Rates of Veterans' Pensions" as payable at 30% of the General Rate.
The issue
The issue is whether the veteran's conditions of hypertension and ischaemic heart disease are war-caused. This entails considering whether the veteran's history of alcohol consumption is causally related to his period of service such as to have caused hypertension through the presence of psychoactive substance abuse, leading to ischaemic heart disease.
The legislation
The relevant provisions of the Act are as follows:
s9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by the veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

Service

The Act requires that for a claim to be accepted the disability must be related to operational and/or eligible defence service. The veteran enlisted in the Australian Army on 29 October 1941 (T3, p.11). The veteran served in the Australian Army from 2 January 1942 to 24 July 1946 (T6, p.40). This period constitutes eligible war service for the purposes of the Act. Because the veteran served in New Guinea and New Britain during this period (T6, p.41), under section 6A of the Act the whole of his service constitutes operational service.
Standard of proof
For the purposes of the Act, the standard of proof in respect of a claim for disability arising out of the veteran's period of operational service is as set out in sections 120(1) and 120(3) of the Act. That is, the tribunal must be satisfied that the claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. Thus the veteran's claim must fail if the material before the tribunal does not raise a reasonable hypothesis to connect the conditions which caused the veteran's disability with the circumstances of the veteran's service.
Statement of principles
The tribunal must have regard to any relevant Statement of Principles ("SoPs") issued by the Repatriation Medical Authority in relation to the war-caused conditions claimed by the veteran. The SoPs state what factors must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the conditions with circumstances of the service. The tribunal can not accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition (120A of the Act).
A number of SoPs have been issued relating to the conditions of hypertension and ischaemic heart disease since the veteran lodged his claim. In the matter of Repatriation Commission v Keeley (2000) 98 FCR 108, at paragraph 46, Justices Lee and Cooper held that unless a contrary intention has been "clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued." This means that a veteran whose claim has been determined by the respondent has an accrued right to have that claim assessed in any review in accordance with the SoP in force at the date of the primary determination of the claim. The date of the primary determination of the veteran's claim in this matter was 9 February 1996. As a result, the tribunal accepts that the relevant SoPs are Instrument No 5 of 1994 (psychoactive substance abuse), Instrument No 83 of 1995 (hypertension), and Instrument No 85 of 1995, as amended by Instruments Nos 360 of 1995 and 63 of 1995 (ischaemic heart disease). The amendments do not affect the relevant provisions of Instrument No 85 of 1995 relied upon by the applicant.
The tribunal must first consider whether a reasonable hypothesis is raised to connect the conditions causing the veteran's excessive intake of alcohol and his hypertension and ischaemic heart disease with his particular service.
Hypertension
Hypertension is defined by clause 4 of Instrument No 83 of 1995 to mean:
(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405.
Subject to clause 3 of the SoP (which does not apply in this matter) at least one of the factors in paragraphs 1(a) to 1(x) must be related to any service rendered by the veteran. The veteran relies on factor 1(b) which requires the veteran to have been "suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension".
Ischaemic heart disease
Instrument No 85 of 1995 states that ischaemic heart disease means "a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen, attracting an ICD code in the range 410 to 414". The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease with the circumstances of a person's relevant service are defined in clause 1 of the SoP. The veteran relies on factor 1(a) which requires "the presence of hypertension before the clinical onset of ischaemic heart disease."
Psychoactive substance abuse or dependence
Clause 4 of Instrument No 5 of 1994 states that psychoactive substance abuse or dependence means:
a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving when intoxicated);

The factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the veteran's relevant service are defined in clause 1 of the SoP. The veteran in this matter relies primarily upon factor 1(a), which requires "experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service". A "stressful event" is defined by clause 4 to mean "an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
Contentions

The veteran contends that he experienced several stressful events in the course of his operational service, which caused him to consume large amounts of alcohol, leading to alcohol abuse during service, and alcohol dependence from 1948 onwards. He contends that his alcohol abuse and dependence caused him to experience hypertension, which led to ischaemic heart disease.
The respondent concedes that the evidence points to the veteran having developed hypertension leading to ischaemic heart disease and that the hypertension is possibly attributable to the amount of alcohol consumed by the veteran prior to its onset. The respondent contends, however, that the veteran's excessive use of alcohol preceded the stressful events he experienced during his service. That being the case, it contends that the veteran's circumstances do not meet factor 1(a) of the SoP relating to Psychoactive Substance Abuse or Dependence. The respondent further contends that the relevant events do not meet the definition of "stressful event", and that the hypothesis raised does not meet the SoP "template" in accordance with the decision in Repatriation Commission v Deledio (1998) 83 FCR 82.
The evidence
The veteran joined the army in 1942. He commenced service in Bathurst, New South Wales, and then spent a period of nearly two years in Geraldton in Western Australia. After this he was sent to New Guinea for 15 months and on his return to Australia he guarded prisoners of war in Cowra. He was discharged in 1946.
Prior to joining the Army, the veteran lived on his family farm where he received no income. According to the veteran, "things were pretty tight" and he never drank alcohol (Exhibit A, para.1), although his father was a heavy drinker (history given to Ms Dignand, psychologist, Exhibit C). The veteran believes that he first drank alcohol in Sydney when he joined the Army. From this time onwards, his consumption of alcohol was regular. In evidence, the veteran explained his regular consumption as being due to the fact that he was away from home with "not much to do". He also had a regular income by this stage. He said (Exhibit A, para.2) that he was:
… mixing with blokes who had different values to my family. I started drinking beer (6 or 8 schooners) and swapping my cigarette allotment for more alcohol. I found that I was looking forward to my next beer and I was spending all of my spare change on alcohol.

During his time there, the Army charged him with "drunkenness" and the veteran was fined five pounds (T3, p.12).

The veteran served with the 2nd Division, Signals. His active service duties in New Guinea involved building lines for communications. The veteran described this work as "involving heavy labour and great stress to achieve deadlines. As well, we were advised that we were in a combat zone and lived constantly under this belief" (Exhibit A, para.2). In evidence the veteran said that he found sleeping difficult because of the sound of guns at night. He was "very nervous" and "stressed" in these conditions. It was his duty to run lines to the infantry in front of his unit in the presence of overhead friendly artillery fire. This work took about six weeks in total.
Two further incidents or "stressors" stood out in the veteran's service which he recalls causing him distress. One was the suicide of a soldier. The veteran related this to Ms Wendy Dignand, psychologist. He said that on the journey to New Guinea "a bloke shot himself" and this distressed him (Exhibit C, p.2). The veteran recalled in evidence that the soldier had not wanted to go to New Guinea. He said that the police forcibly put the soldier on to the boat and he "shot himself the next morning". The veteran did not know the soldier and did not witness the suicide.
In evidence the veteran also recalled an incident where his unit came across the skeletons of approximately eight Australian soldiers apparently massacred by the Japanese. He recalled that some of the skeletons showed the soldiers had been shot in the head and some heads had been "split open with a sword". The veteran said that he often thought of the massacre at night and lived in fear that the same might happen to him. The veteran said that he could fulfil his duties "fairly well" despite being "nervous". There was no alcohol available at this time. The veteran did not relate this second event to Ms Dignand (Exhibit C), nor is it mentioned in his statement (Exhibit A). In evidence the veteran said that he had not mentioned the massacre incident to Ms Dignand when he saw her in 1999 because he had tried to keep the memory out of his mind.
The veteran commenced drinking alcohol again on the boat returning from New Guinea to Australia after the conclusion of the war. He said that when he arrived in Brisbane, he drank some more, and in giving evidence he attributed this "to get [war experiences] out of my mind". However, the veteran said he did not experience sleeping problems on his return to Australia. He was posted to Cowra where he was a prison guard of prisoners of war. He recalls that during this period he consumed approximately six middies of beer each day, and 10 to 12 middies on leave days. Sometimes his drinking during this period caused him to "blackout".
After his discharge the veteran returned to Leeton, New South Wales, and he said he found "civilian life to be very different from the stresses I had experienced during Army life." (Exhibit A, para.3). He felt that he was "better able to cope" with this new life by having more to drink. He worked as a local council linesman and remained in the job until his retirement in 1983. The veteran spent the majority of his spare income on alcohol.
The veteran met his wife in 1946 and they married in 1948. In this period the veteran consumed approximately six to eight schooners of beer a day (Exhibit A, para.5). He recalls consuming between 10 to 12 schooners each day of the weekend. He found that he enjoyed the social aspects of drinking. The veteran recalls on a number of occasions that he had to be carried home by friends. In his statement and in evidence the veteran claimed that there were "many occasions" where he missed work because of the effects of alcohol the following morning. In his statement the veteran claimed this would "cause friction with my employer as they knew it was a self-induced illness." His drinking was also the cause of many verbal arguments with his wife including, on some occasions, physical violence. The veteran was not required to drive in his employment and he claims never to have driven about town. He also claims that "whenever I was in a bit of a bind because of my drinking, the local authorities helped me out rather than charged me with a crime because they knew me and knew I was not a dangerous person" (Exhibit A, para.6).
The veteran's wife, Mrs Joyce Hehir, verified the veteran's evidence in relation to his excessive drinking, which she said continued throughout their marriage. Mrs Hehir said in evidence that the veteran never drank alcohol at home. He mostly drank at the local hotel after work, and he absented himself for long periods at weekends to drink with his friends. She recalled the problems at home that arose because of the veteran's drunken behaviour in front of the children. He argued and was sometimes violent towards her.
Mrs Hehir sought help from the local church and doctors about the veteran's drinking problem, but she said that not much could be done. She said that on a number of occasions she called the veteran's employers to tell them her husband was sick and could not go to work, when in fact he was experiencing the effects of alcohol consumption from the previous evening. According to her evidence, other of the veteran's work mates similarly absented themselves from work after heavy drinking sessions.
Mrs Hehir gave no evidence that supported a link between the veteran's drinking problems with his wartime experiences. There is no evidence before the tribunal that she, the veteran, the people she saw at the local church or the veteran's doctors, linked the veteran's war experiences with his drinking habits. Mrs Hehir told the tribunal that her husband had not discussed his war time experiences until about five or six years ago. The veteran explained that this occurred because his children started to ask him questions about his service. Both Mrs Hehir's and the veteran's evidence referred to the heavy drinking culture that existed in the group of council employees with whom the veteran worked, and the veteran's enjoyment of the social contact that gave him.
Medical evidence
The veteran's heart disease is documented. He had a myocardial infarction in 1992. Coronary artery bypass surgery was performed on the veteran in February 1992 and a pacemaker was inserted in June 1992 (T6, pp.42, 43; see also T9, p.49; T11, p.58; T13, p.61). The veteran said that "this gave me a great shock and I have cut down my drinking considerably since then". He now consumes light beer only (Exhibit A, para.8).
There is conflicting evidence on the question of when the veteran first experienced hypertension. The veteran recalls being aware of problems with his blood pressure for "as long as I can remember" (Exhibit A, para.7). He believes that he first became aware of the presence of hypertension not long after returning from service. In evidence, Mrs Hehir stated that she recalled her husband's hypertension starting in 1947 or 1948. Ms Dignand was provided with a history of the veteran's hypertension, along with gout, dating "from the time of his military service" (Exhibit C, p.2).
As against this, an undated entry in the clinical records from the Leeton Medical Centre notes a history of hypertension from the 1980's. Following this note is an entry stating "ACUTE MI (inferior) 13/5/92" (Exhibit B). Dr David Richards, cardiologist, who examined the veteran and reported on that examination on 17 February 1999, states that hypertension was first noted on 11 June 1990 when the veteran was admitted to hospital for excision of a basal cell carcinoma on the face (Exhibit 1, p.1). This accords with the medical records at T5 (pp.22, 24, 27, 34, 38). Dr Richards notes that on admission on this occasion the veteran's blood pressure was 110-190/70. He also notes that the veteran's blood pressure on 31 May 1946 was 130/80, although it is not clear whether he saw a record of this reading, or was informed of it by the veteran. On this information he concludes that the veteran was not hypertensive when he was discharged from the service. He recorded the same reading when he took the veteran's blood pressure in the course of his examination of him in February 1999 (Exhibit 1, p.2), by which time the veteran had been treated for hypertension.

The tribunal prefers the evidence provided by the documented records to the veteran's and Mrs Hehir's recall of the clinical onset of his hypertension. While the veteran may not have suffered hypertension before the 1980s the condition was diagnosed at least by June 1990, before the clinical onset of ischaemic heart disease. Dr Richards offers the opinion, which the tribunal accepts, that while alcohol might have exacerbated the veteran's hypertension in latter years, it did not cause hypertension during his operational service. It follows that the veteran's excessive alcoholic intake during and after his war service preceded the clinical onset of his hypertension.
The tribunal accepts that the veteran's excessive alcohol intake amounted to psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension (as required by factor 1(b) of Instrument No 83 of 1995 for hypertension). In addition to the applicant's and Mrs Hehir's evidence, the tribunal notes an entry made by an RMO (T5, p.34) which records "drink 10 g/d" (presumably "glasses per day"). Ms Dignand, psychologist, assessed the veteran as having suffered from alcohol abuse and dependency. The tribunal notes that Ms Dignand relied upon a different SoP to Instrument No 5 of 1994, but is of the view that her assessment meets the definition in clause 4 of the applicable instrument.
The tribunal finds, therefore, that the veteran suffered alcohol abuse, and dependence which persisted at least until the clinical onset of hypertension. It finds that the hypertension preceded the onset of ischaemic heart disease. The issue is whether the alcohol abuse or dependence postdated the stressful events experienced by the veteran during his service, and if so, whether his service caused or contributed to the alcohol abuse or dependence.
Whether the veteran's consumption of alcohol is causally related to his service
The veteran submits that he first suffered psychoactive substance abuse during his posting to Cowra after his return from active service in New Guinea. However, the evidence is clear that the veteran commenced heavy drinking in 1942 in Western Australia shortly after joining the service. His evidence is that he drank five to eight schooners of beer daily – much the same rate as he drank when he was posted to Cowra – and that he spent all his spare change on beer. He looked forward to drinking with his work mates at the end of the day. He was charged with drunkenness on one occasion in Western Australia.
The evidence does not suggest that the veteran suffered any stressful event during his service in Western Australia. Rather, it seems that the veteran's drinking habit emerged in response to his new social situation, the camaraderie, and his ability to afford alcohol. The tribunal accepts that he was working amongst people who also drank heavily, and was probably encouraged to drink. As to this, Ms Dignand states in her report of 5 July 1999 (Exhibit C, p.4), that the veteran "may have commenced such a habit once he had escaped the isolation of his farm life", no matter where he worked. This is borne out by the fact that the veteran resumed the same pattern of social drinking when he was posted to Cowra after his return from New Guinea, and continued it in his civilian life in Leeton.
It is clear on the evidence that the clinical onset of the veteran's psychoactive substance abuse preceded the three stressful events the veteran says he experienced during his active service. There is no sufficient ground for making a finding to the contrary.
The veteran submits that although his psychoactive substance abuse may have commenced before experiencing the three stressors discussed above, his dependence arose after those events. He submits that his substance abuse or dependence was therefore materially contributed to by operational service.
The tribunal accepts these "stressors" could amount to "stressful events" as understood by Instrument No 5 of 1994, and that they were experienced prior to the clinical onset of psychoactive substance dependence. The question that arises is whether those stressful events caused or contributed to the veteran's psychoactive substance dependence, or to a clinical worsening of alcohol abuse, to meet any of the other factors in clause 1 of Instrument No. 5 of 1994.
In relation to the first stressful event experienced by the veteran, the suicide of the soldier, the veteran did not witness the suicide and he did not know the soldier, and he reports no symptoms of being distressed by it. In relation to the stress he suffered in New Guinea from the fear of being attacked, the veteran said in evidence that he did not have very much fear about being hit by Australian artillery, but that there is always "a chance one could go wrong". None of his colleagues were injured in these circumstances and the artillery fire was some miles from where they worked. It seems that the noise of the artillery was what disturbed him most. He was clearly distressed and frightened on seeing the skeletons of massacred bodies. However, the veteran said in evidence that "once I was away from there it didn't take too long" to "get over" the experience.
The veteran's access to alcohol while he was in New Guinea was limited. He was not able to numb his fears by drinking excessively. He suffered disturbed sleep, because of the noise of artillery fire, broken shifts, and the fear of being attacked. Once back in Australia, he said he had no difficulty sleeping.
The evidence available to the tribunal is that the veteran, on returning to Australia, resumed his 1942 drinking patterns, and once again suffered from alcohol abuse (sometimes drinking until he blacked out), and that by 1948 he suffered from alcohol dependency. Ms Dignand, in her report (Exhibit C), recognising that the veteran was drinking heavily before he witnessed the aftermath of the massacre of soldiers in New Guinea, does not regard that event as a "stressor" which contributed to his continuing alcohol abuse. Neither did she, in that report, link the veteran's continuing dependency on alcohol to the stressful events he experienced during his service on the history given to her.
On being told further details of the veteran's stressful experiences during his service Ms Dignand stated in evidence that the "stressful event" (factor 1(a)) and "subjective symptoms of increased stress" (paragraph 4) "may" have contributed to the onset of the veteran's psychoactive substance dependence from 1948. Ms Dignand agreed that developing self-treating techniques, such as consuming alcohol to the point of "blackouts" and deliberately forgetting the images and experiences of war service were consistent with a psychological condition. However, on the whole of the evidence available the tribunal does not accept the possibility of there being a connection between the stressful events and the veteran's alcohol dependence.
The evidence does not support the proposition that the veteran suffered a psychological stress condition. The veteran's evidence indicated that he managed to cope with the stressful events he experienced. He said that once he left New Guinea and he was no longer in danger, his fears dissipated. His coping mechanism included techniques to put the incidences to the back of his mind. He talked to his family about these events only when, and because, his children asked questions about his service. He did not elaborate on them, or discuss them all with Ms Dignand, whom he saw specifically to obtain an opinion for the purposes of this claim. There is no evidence to suggest that the veteran suffered a post traumatic stress disorder that might account for a failure to recall and talk about distressful memories.
The veteran's consumption of alcohol in Cowra, after New Guinea, was similar to the amounts he was drinking in Western Australia. The veteran was candid in giving evidence that he enjoyed drinking with his colleagues after work in Leeton. The veteran said that he was still able to give his employer "good service" until his retirement in 1983 (Exhibit A, para.9).
The tribunal is satisfied beyond reasonable doubt that the veteran's experiences in New Guinea did not cause or contribute to any increase in his consumption of alcohol, or cause or contribute to the condition or clinical worsening of the condition of alcohol abuse or dependence. The tribunal is therefore satisfied beyond reasonable doubt that there is no causal connection between the veteran's psychoactive substance abuse or dependence and his war service.
Decision
The decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         James Enderbury           .....................................................................................
  Associate
Date of Hearing  11 December 2000
Date of Decision  18 January 2001
Counsel for the Applicant        Mr Paul Crabb
Counsel for the Respondent    Mr Stephen Modder