Howard and Repatriation Commission (Veterans' entitlements)
[2020] AATA 67
•28 January 2020
Howard and Repatriation Commission (Veterans' entitlements) [2020] AATA 67 (28 January 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/4808
Re:Dell Howard
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 January 2020
Place:Brisbane
I affirm the decision under review.
.........................[sgd]...............................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS AFFAIRS – claim for war widow’s pension – veteran deceased – death from chronic obstructive pulmonary disease and ischaemic heart disease – Deledio principles – hypothesis connecting the death of the veteran with his operational service – whether hypotheses raised reasonable – Statement of Principles do not uphold hypotheses that the veteran’s death is related to service – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
STATEMENTS OF PRINCIPLE
Statement of Principles for Anxiety Disorder (No. 102 of 2014)
Statement of Principles for Chronic Obstructive Pulmonary Disease (No. 37 of 2014)
Statement of Principles for Ischaemic Heart Disease (No. 1 of 2016)
Statement of Principles for Post-Traumatic Stress Disorder (No. 82 of 2014)
CASES
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 177 FCR 280
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Warren [2008] FCAFC 64
Stevens v Repatriation Commission [2018] FCA 1866
Summers v Repatriation Commission (2007) 230 FCR 179
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 January 2020
BACKGROUND
Ms Dell Howard (‘the applicant’) made a claim for widow’s pension on 7 July 2015 on the basis that the death of her de-facto partner, the late Mr Edwin Lee (‘the veteran’) was war-caused under the Veterans’ Entitlement Act 1986 (‘the Act’). The veteran was not in receipt of a pension under the Act prior to his death.
On 5 October 2015 the respondent determined that the death of the veteran was not service related.
On 20 July 2016 the Veterans’ Review Board (‘VRB’) affirmed the decision of the respondent.
On 9 September 2016 the applicant made an application to this Tribunal to review the respondent’s decision.
The applicant did not give evidence at the hearing of this application. There was no medical certificate which confirmed her unavailability to give evidence. However, Dr Victoria Howard, her daughter, gave oral evidence (which I certainly accept) that the applicant was not medically fit to participate in the proceedings. Dr Howard (who does not have a medical doctorate) informed the Tribunal that her mother had an anxiety condition which was being treated. She remarked: “Mum would never want to go to court. I can relate back to when my father passed away, and she could have gone to court to have been eligible to continue with his own pension, and she wouldn’t do it”. I was advised that the applicant was not available to attend the hearing as she was in a nursing home. I accept that it is reasonable that the applicant did not attend the hearing of her application.
LEGISLATIVE FRAMEWORK
Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
Section 8 of the Act provides when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b) of the Act, “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. Section 11(1) of the Act defines the term ‘dependent’ to include ‘the partner’ or ‘a widow’.
Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension.
Section 5E of the Act defines a ‘widow’ to include (a) a woman who was ‘the partner’ of the veteran immediately before the veteran’s death, or (b) a woman who was legally married to the veteran immediately before the veteran’s death. A ‘partner’ is further defined in s 5E in relation to a person who is a ‘member of a couple’. A ‘member of a couple’ is defined to include a couple ‘in a de facto relationship… and living with the partner’.
Section 11A of the Act provides that regard is to be had to certain matters in forming an opinion as to whether two people were living together in a de-facto relationship:
·Financial aspects of the relationship;
·Nature of the household;
·Social aspects;
·Any sexual relationship; and
·The nature of the people’s commitment to each other.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying the ‘reasonable hypothesis’ standard of proof outlined in sections 120 and 120A of the Act.
Subsections 120(1) and 120(3) of the Act provide that where a claim for a pension:
(1) … in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Section 120A of the Act provides how a hypothesis must be assessed:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
…
that upholds the hypothesis.
STATEMENT OF PRINCIPLES
Section 196A of the Act establishes the Repatriation Medical Authority (‘RMA’), which is an independent medical body that issues Statements of Principles (‘SoPs’) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.
Section 196B(2) of the Act provides that if the RMA:
(2) … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
…
the Authority [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A Statement of Principle (‘SoP’) is binding on the respondent and this Tribunal.
EVIDENCE
The veteran’s service medical records
The veteran’s service medical records indicate that the veteran had a long-standing history of eczematous dermatitis. On 26 February 1947 a medical officer considered that the incapacity from dermatitis did not result from an occurrence happening during the period when the veteran was a member of the armed forces.[1] The condition was accepted by the respondent on 26 March 1947 for the purpose of providing medical treatment as being ‘due to or aggravated by war service’.[2] However, the respondent determined that there was no pension payable for this condition.[3]
[1] Exhibit A, T-Documents, T17, p.181.
[2] Exhibit A, T-Documents, T17, p. 183.
[3] Exhibit A, T-Documents, T17, p. 184.
Other medical records
There are also other references throughout the material to the veteran suffering from other issues including sciatic pain, and bowel problems.[4] It was also noted that the veteran suffered from pain in his right calf and lower back from November 1980.[5]
[4] Exhibit A, T-Documents, T17, p. 238-240.
[5] Exhibit A, T-Documents, T17, p. 245.
A patient assessment dated 3 September 2005 recorded that the veteran was suffering from hypertension.[6] It was also recorded that the veteran consumes two wines per night and ceased smoking 50 years ago. [7]
[6] Exhibit H, Summons documents.
[7] Exhibit H, Summons documents.
On 25 July 2007 a patient assessment again recorded that the veteran was suffering from hypertension.[8] However, the assessment recorded that the veteran drinks alcohol socially and that he ceased smoking in 1945.[9] There was no record of the veteran suffering from ‘depression/anxiety’ or ‘post-traumatic stress disorder’.
[8] Exhibit H, Summons documents.
[9] Exhibit H, Summons documents.
In a health history questionnaire dated 16 May 2007 the veteran recorded being ‘partnered’ in response to ‘marital status’.[10] The veteran also recorded consuming fourteen drinks of alcohol per week, namely: ‘beer, wine, whisky’.[11]
[10] Exhibit H, Summons documents.
[11] Exhibit H, Summons documents.
On 12 October 2007 Dr Robert Campbell, consultant neurologist reported: “Features of depression are starting to become apparent to Mr Lee and his family. It is not as bad as what was evident in the first week after surgery but I suspect it will need to be monitored and perhaps specific treatment commenced.” [12]
[12] Exhibit H, Summons documents, p. 22.
On 21 November 2007 Dr Mark Weller, general practitioner reported that the veteran “still suffers quite badly, short term memory is reduced and he was a little depressed. He seems to have improved with Sertraline 50mg… Energy is slightly reduced & he has a recurrent occipital headache”.[13] Dr Weller’s report recorded in the veteran’s past history that the veteran had ‘depression – reactive’ since 7 November 2007.[14]
[13] Exhibit H, Summons documents, p. 23.
[14] Exhibit H, Summons documents, p. 23.
On 7 December 2007 Dr Robert Campbell reported that the veteran commenced taking Zoloft for depression which “would appear to be working as his overall demeanour is significantly improved… his wife feels that today is an average day and that on other occasions is even better than what I witnessed today”.[15]
[15] Exhibit H, Summons documents, p. 25.
Veteran’s death certificate dated 19 May 2015
The veteran passed away on 4 May 2015. The cause of death was certified as:
“1 (a) Bronchopneumonia (b) Chronic obstructive pulmonary disease 2. Ischaemic heart disease, congestive cardiac failure”.[16]
[16] Exhibit A, T-Documents, T7, p. 33.
Alcohol Questionnaire – Dependent dated 7 July 2015
The applicant completed an alcohol questionnaire on 7 July 2015.[17] The applicant stated that she had no knowledge of the veteran’s alcohol consumption prior to 1990 and that he only occasionally drank alcohol, ceasing permanently in 2014.
[17] Exhibit A, T-Documents, T4, p. 18.
Smoking Questionnaire – Dependent dated 7 July 2015
The applicant completed a smoking questionnaire on 7 July 2015.[18] She stated that the veteran smoked before she met him but that he had stopped smoking in approximately 1950.
[18] Exhibit A, T-Documents, T5, p. 20.
Health questionnaire dated on or around 31 July 2015
In a health questionnaire attached to ‘Submission in support of a claim for pension by the widow of a deceased veteran’, the applicant or a representative of the applicant from Legacy outlined that the veteran had symptoms of ‘sweating for no reason, anxiety, depression’.[19] The veteran also did not like talking about ‘Japanese people and had a panic attack when saw (sic) young man with hats on back to front as it reminded him of the Japanese’.[20] The onset of the veteran’s heart disease was listed as beginning in 2004.
[19] Exhibit A, T-Documents, T7, p. 35.
[20] Exhibit A, T-Documents, T7, p. 35.
Minute from the Department of Veterans’ Affairs dated 20 August 2015
A minute from the Department of Veterans’ Affairs (‘DVA’) dated 20 August 2015 outlined that the veteran’s primary cause of death was ‘chronic obstructive pulmonary disease’ with a contributory cause of death of ‘ischaemic heart disease’.[21]
[21] Exhibit A, T-Documents, T9, p. 46.
Report of Dr Albert Palazzo, consultant historian dated 31 October 2016
Dr Albert Palazzo provided a report dated 31 October 2016 at the request of the applicant.[22] Dr Palazzo was asked to investigate the nature of the veteran’s operational service and the provision of cigarettes and/or tobacco to soldiers.
[22] Exhibit B, Report of Dr Albert Palazzo dated 31 October 2016.
Dr Palazzo reported that the veteran was enlisted in the Army on 16 October 1941 at the age of 18 years and 3 months. After completing his initial training the veteran joined the 5th Battalion serving in Western Australia, South Australia and the Northern Territory. The veteran served as a part of the Darwin fortress for more than a year between 14 September 1943 and 5 November 1944, and while there, came down with dermatitis spending a considerable amount of time in hospital.
Dr Palazzo reported that in early 1945 the veteran was transferred to the 2/23rd Battalion which was preparing for overseas service. On 1 May 1945, the veteran went ashore with his battalion in the first landing wave of troops at Tarakan. Dr Palazzo reported that the veteran’s battalion fought against determined Japanese resistance that saw the 2/23rd Battalion suffer 11 dead and 147 wounded. Soon after Japan’s surrender, the veteran suffered a recurrence of dermatitis and was evacuated to a casualty clearing station and then to a general hospital. The veteran was evacuated to Morotai and then returned by air to Australia. The veteran was discharged in November 1945. The veteran served 183 days on overseas operations and 1506 days in total during his Army service.
Dr Palazzo reported that the Australian assault on Tarakan was the first of what was known as the Oboe Operations which were a series of assaults to retake from the Japanese key positions on the island of Borneo. Tarakan was the first Oboe Landing and the primary objective was the island’s airfield. The Allies planned to use the airfield to support the subsequent Oboe Landings.
Dr Palazzo reported that the capture of Tarakan was assigned to the Australian 26th Brigade of which the 2/23rd was one of its infantry battalions. Dr Palazzo reported that the landing at Tarakan is well documented and provided historic records which gave an overview of the fighting the veteran would have participated in and the experiences that he would have witnessed.
Dr Palazzo reported:
Lee landed as a part of the first wave when the 2/23rd Battalion came ashore on Green Beach. As was standard tactical practice for the Japanese at this time of the war, the landing was unopposed. Instead the enemy planned a defence in depth that covered the entire island. The 2/23rd Battalion landed in an area devastated by naval and air bombardment. As the landing craft neared the beach, small craft launched thousands of missiles towards the shore while destroyers darted about firing their guns.
Dr Palazzo reported that on 3 May 1945 the 2/23rd Battalion was repeatedly repulsed by determined Japanese resistance as it attempted to clear Hospital Spur. The battalion only secured the position as the enemy pulled back and during the daylight the Australians pushed forward clearing bunkers as they went. Then at night the Australians formed all-around defences to guard against enemy soldiers crawling into their positions and detonating the 75mm shells that were strapped to their backs. On one evening a raider crept into the dressing station of the 2/11th Field Ambulance and detonated his bomb amongst the Australian wounded. Throughout the night small arms fire probed the Australian positions while during the day the enemy bombarded the veteran’s battalion with artillery rounds and mortar bombs fired from hidden positions located in the island’s rugged interior. When the Australians trapped the enemy in caves, bunkers or tunnels, and if they refused to surrender, the pioneers came forward and sealed the Japanese into the earth with charges of gelignite. The Japanese also made effective use of snipers, sometimes allowing the Australians to pass before firing.
Dr Palazzo reported that once the airfield was secured, the Australians adopted a more methodical approach to the task of clearing the island. Typically before an attack a squadron of Liberator Bombers would drop 500 and 1000 pound bombs on the enemy’s position, followed up by napalm delivered by Lightnings. Dr Palazzo reported that the men of the battalion witnessed at least one napalm attack and while no charred bodies were found in this instance, enemy prisoners of war remarked that they were terrified of the fire bombs.
Dr Palazzo reported that effective enemy resistance on the island ended in July 1945 however the Australians continued to hunt Japanese stragglers for weeks, killing or capturing some every day. The Australians maintained their patrols, seeking out any remaining enemy, although at a reduced level of activity. Dr Palazzo reported that by late July 1945 the Army began to send long serving veterans home for demobilisation and if it had not been for the veteran being medically evacuated, he would have been one of the last troops to leave.
Dr Palazzo reported that this campaign cost the 26th Brigade 840 casualties including 171 dead. The Australians recovered 1,540 Japanese bodies and a further 252 had surrendered. Dr Palazzo reported that a contributing factor in the tenacity of the Japanese defence was their inability to surrender so they fought beyond reasonable chance of success. Tarakan was also a small island which did not have a safe interior to which they could flee and hide.
With regards to the availability of cigarettes, Dr Palazzo reported that it was Australian Government policy to make cigarettes and tobacco readily available to soldiers serving in the Army and they were provided with the soldier’s rations, as well as available for purchase at canteens and provided by various comfort funds. In 1945 the military received about 28% of the available supply of tobacco products.
Dr Palazzo reported that he was unable to find an example of the Australian ration for service in the tropics but he did find the rations for the British and American Armies. Dr Palazzo reported that the British Operational Ration was based on the Australian version so there is no reason to suppose that the Australian ration did not include cigarettes. Therefore it is likely that the Australian soldiers throughout the war received cigarettes as a part of their ration. Dr Palazzo reported that the provision of tobacco products to soldiers was a priority for the Government and as a result of this policy, there was an increase in the smoking rate of the population.
Dr Palazzo concluded that the veteran saw active service with the 2/23rd Battalion during its participation in the retaking of the island of Tarakan from the Japanese and that this battalion suffered heavy casualties during the campaign. Dr Palazzo reported that the veteran’s battalion was in the thick of the fight at Tarakan and that the veteran would have received cigarettes from the Australian Government and various comfort funds, as well as canteens.
Dr Victoria Howard
Dr Victoria Howard is the daughter of the applicant. She gave oral evidence that she is currently the sole carer of the applicant. She also provided a statement dated 25 November 2016.[23]
[23] Exhibit C, Statement of Victoria Howard dated 25 November 2016.
Dr Howard remarked in her statement that the applicant first met the veteran at the Aspley Bowls Club. At the time the applicant lived in Chermside and the veteran lived in Aspley. Dr Howard first met the veteran in 1989/1990. Dr Howard remarked that she was overseas in 2001 and returned to Australia in 2010. She said that she flew home at least two or three times a year while she was overseas.
Dr Howard remarked that she owned a property in Lake Somerset and the applicant and the veteran would stay at this property on some weekends. When she eventually sold the property the applicant and the veteran lived there for another twenty years and only moved out when it became necessary for them to go into aged care.
Dr Howard remarked that the applicant’s relationship with the veteran was a bona fide and genuine domestic relationship of great care, affection and exclusiveness. She outlined that as the veteran’s health deteriorated, the applicant cared for him with the ‘utmost devotion even though her own health was failing’. At the hearing Dr Howard was taken through a series of photographs, which she confirmed depicted the applicant and the veteran in a de-facto relationship. Dr Howard also spoke of how the veteran proposed to the applicant in 2003, but a marriage never eventuated.
Dr Howard recalled that when she first met the veteran he was not smoking but was aware that he had smoked. Dr Howard recalled observing nicotine stains on the fingers of the veteran’s right hand which she described as entirely consistent with a lengthy history of cigarette smoking. Dr Howard recalled the veteran telling her stories that left her with the impression that he had consistently smoked his whole life, but had given this up some time before meeting the applicant.
Dr Howard remarked that she had a close relationship with the veteran and that he regarded her as his ‘daughter’. Dr Howard and the applicant also became close with one of the veteran’s sons. Dr Howard mentioned that she had to place the veteran in a nursing home in January 2013.
Dr Howard described the veteran as ‘kind, thoughtful, generous, gentle and ostensibly outgoing’. She believed that the veteran’s outgoing nature was sometimes a façade as in fact he was quite shy. Dr Howard described that the veteran never liked participating in discussions about war and even when she asked him about his World War II experiences, the veteran would refuse to talk about it stating that they were too ‘graphic’ and that he ‘did not want to distress’ her. Dr Howard outlined that this was despite the fact that he was aware that she had had ample exposure to military matters, given her late husband was a Regimental Sergeant Major in the Army and she was in the Reserves for three years with the military police.
Dr Howard opined that the façade the veteran gave to the world was in fact a barrier to block out the painful memories from his wartime experiences. He would often sit for hours looking over Lake Somerset appearing to be in deep thought. Dr Howard formed the opinion that the veteran internalised emotions and that there was a deep underlying sadness about him. She described the veteran as suffering from an ‘underlying anxiety type condition’.
Dr Howard described the veteran as having a bad habit of scratching his arms and fidgeting with the hem of his shorts (to the extent that he would wear out the stitching). The veteran would get upset when the applicant would ask him why he was scratching his arms. The veteran also refused to dispose of anything well passed its use-by date and would also ensure that his dinner plate was scraped clean until it was ‘spotless’ even down to the last crumbs. The veteran would also sweat excessively during his sleep requiring the pillowcases to be changed nearly every day. The veteran also avoided being in crowds or larger groups of people and Dr Howard recalled the veteran often appearing on edge where he could become irritated quite quickly. There were occasions where he would become angry for irrational reasons.
Dr Howard recalled a particularly distressing incident with the veteran and the applicant while she was still living in Sydney in about 1991. While they were visiting Darling Harbour the veteran saw a young boy wearing a baseball cap and the veteran started shaking, trembling and sweating saying that he could not ‘handle seeing people wearing a hat like that, it reminds me of the Japanese soldiers’. Some years later when Dr Howard attended the hospital to visit the veteran with her nephew, he was wearing a cap back to front and the veteran asked him to remove it which he reluctantly did.
Report of Dr Geoffrey Rees, consultant psychiatrist dated 26 May 2017
Dr Geoffrey Rees provided a report dated 26 May 2017 at the request of the applicant.[24] Dr Rees considered that there is significant evidence that the veteran may have suffered from an anxiety disorder. Dr Rees outlined that the veteran was in the first wave of the battle at Tarakan which:
“…involved heavy casualties and was a famous brutal battle with the Japanese providing stiff resistance. Relatively, few Japanese prisons (sic) were taken alive and suicide attacks by the Japanese were frequent and had a profound effect on the morale of the Australian troops. Despite being under siege the Japanese would frequently make night attacks on the Australian positions in what were usually suicide attacks. Australian casualties were heavy and there was a great deal of hand-to-hand fighting. Additionally, the Japanese use of snipers was extremely common and also had a demoralising effect on the Australian soldiers.
In short, it was a campaign where it was impossible to relax or to feel secure.
Clearly, Mr Lee would have witnessed friends killed and injured. His personal safety would have frequently been at risk.
Thus, this campaign had all of the elements that might have produced traumatic incidents and additionally, a sense of horror and particularly uncertainty regarding snipers and suicide attackers. As the modern world has discovered, there is little that conventional military defences can do against a committed attacker intent on suicide.”
[24] Exhibit D, Report of Dr Geoffrey Rees dated 26 May 2017.
Dr Rees considered that it would be unusual for post-traumatic stress disorder to exist without significant evidence of nightmares which would be reported by a sleeping partner: however, he remarked that there is other evidence to suggest an anxiety disorder and possible post-traumatic stress disorder. Dr Rees relied on the submissions of Dr Howard which he considered were balanced without unnecessary embellishment.
Dr Rees referenced Dr Howard’s reports of the veteran regularly kicking the blankets off during the night and his refusal to discuss any of his experiences of World War II indicating that these experiences were too graphic and distressing. Dr Rees considered this to be a reference to the veteran’s distressing memories of Tarakan.
Dr Rees referenced Dr Howard’s example of the veteran as tremulous and sweating when he saw a young boy wearing a baseball cap back to front as a likely flashback with a physiological response to a cue of previous trauma and a classic sign of post-traumatic stress disorder.
Dr Rees considered Dr Howard’s reports of the veteran excessively sweating during the night as a telling symptom of anxiety and post-traumatic stress disorders. Dr Rees reported that the excessive sweating is completely unrelated to temperature and that it is called hyperhidrosis, which is thought to represent a physiological response amongst a cluster (such as raised heart rate, raised blood pressure etc.) that occur in a flight or fight reaction. Dr Rees reported that sufferers of anxiety disorders frequently report sweating that often covers the entire body, particularly in the head region. Sufferers of anxiety and post-traumatic stress disorders also describe a strong malodorous sweat which tends to stain sheets and pillow cases.
Dr Rees reported sufferers of anxiety and post-traumatic stress disorders too often become irritated quickly over small and unimportant issues. Dr Rees also reported that sufferers of anxiety often have some increased obsession with hoarding and rigidity regarding throwing out expired food or broken items of no value in an attempt to render predictability to an otherwise uncertain future. Dr Rees reported that obsessive compulsive disorder is a pathological response as a defence against anxiety.
Dr Rees referred to the veteran’s habit of scraping his plate clean of food as an obsessional behaviour frequently seen in veterans of World War II who often lived on extremely limited rations. Dr Rees considered that this habit provided insight into how much the veteran’s post-war thoughts were preoccupied with war time experiences.
Dr Rees considered that the veteran’s consumption of six to nine standard drinks of whiskey per night was clearly excessive and an attempt at self-medication for anxiety and post-traumatic stress disorder.
Dr Rees considered that the veteran’s bad habit of scratching the dermatitis on his arms and legs is seen in people with an anxiety disorder thought to be a habitual behaviour. Dr Rees reported that this habit propagates ongoing difficulties with dermatitis by producing a histamine response which exacerbates the dermatitis. Dr Rees also considered that fidgeting, hand movements, trichotillomania and scratching of skin are anxiety related symptoms and noted the references in the medical records of the veteran suffering from rectal bleeding and pruritus ani which is frequently seen in people with anxiety disorders as essentially pruritus ani is an itchy anus which then goes on to be damaged by repeated scratching.
Dr Rees also referred to the reference of Prazosin 1mg in the medical records which is a medication used to suppress nightmares in patients with post-traumatic stress disorder. Dr Rees however believed that in this case the medication was prescribed to the veteran in July 2007 for his high blood pressure and then in 2013 it was prescribed for easing symptoms of prostate hypertrophy.
Dr Rees reports the veteran first taking Zoloft 50mg on 23 March 2015 in a setting of end-stage renal failure and congestive heart failure.
Dr Rees is of the opinion that there is a reasonable hypothesis that the veteran suffered from an anxiety disorder dating back to around the time of his military service, and that on the balance of probabilities, he did suffer from a generalised anxiety disorder as a result of his military service. Dr Rees also considered that there were details to suggest the veteran suffered from post-traumatic stress disorder including distressing memories, flashbacks, social withdrawal and emotional numbing. Dr Rees noted the apparent absence of any evidence of nightmares whilst unusual in a diagnosis of post-traumatic stress disorder is not unknown, as sometimes partners are unaware of such suffering.
Dr Rees considered that it seemed reasonable to suggest that the veteran would have seen sufficient death during the Tarakan campaign to fulfil some of the criterion of post-traumatic stress disorder and that while his dermatitis preceded the assault on Tarakan, it flared up during his time there which is common in sufferers of anxiety disorders. Dr Rees considered that it was likely that the veteran suffered from a generalised anxiety disorder with a probable diagnosis of post-traumatic stress disorder. Dr Rees concluded that while there was inadequate evidence to provide a post-traumatic stress disorder diagnosis, on the balance of probabilities, the veteran did suffer from post-traumatic stress disorder.
Report of Dr Frank Varghese, consultant psychiatrist dated 12 October 2017
Dr Frank Varghese provided a report dated 12 October 2017 at the request of the respondent.[25] Dr Varghese noted a lack of developmental history and a minimal amount of information available as to the veteran’s overall psychosocial functioning since his return from overseas service. Dr Varghese also noted that it appeared the veteran was never interviewed by anyone.
[25] Exhibit E, Report of Dr Frank Varghese dated 12 October 2017.
Dr Varghese considered that overall the veteran’s psychosocial functioning appeared to have been ‘quite good’ up until the time his frontal lobe meningioma was diagnosed. Dr Varghese noted the significant complications following this surgical procedure and considered it unsurprising that the veteran developed mood symptoms post-surgery given the complications, and it was only after surgery that he commenced anti-depressants.
Dr Varghese reported that it does not seem that the veteran considered that he was suffering from a psychiatric disorder or psychological condition and that on the information available, he was unable to make any psychiatric or neuropsychiatric diagnosis of the veteran prior to 2007.
Dr Varghese considered the opinions expressed by Dr Rees’ in his report dated 26 May 2017 to be speculative rather than a reasoned hypothesis. Dr Varghese considered that not wanting to discuss war experiences may be normal and may not be a sign of psychiatric illness as on the whole, people do not like discussing distressing experiences which is not necessarily a sign of illness.
Dr Varghese also considered that the reports that the veteran disliked crowds may be a reflection of his personality or the hearing difficulties he experienced. Dr Varghese also considered that the veteran’s rigidness and routine are also likely to be reflections of the veteran’s personality or organic orderliness secondary to frontal lobe meningioma. Dr Varghese considered it normal for individuals who grew up during the Great Depression to finish everything on their plate. It was also normal for war veterans of a certain generation to have a negative reaction to the Japanese. Dr Varghese considered that these are not signs of being mentally ill.
Dr Varghese also considered the frequent changes in bed linen may be a reflection of dermatitis. Dr Varghese considered that psychological factors are certainly important in understanding dermatitis as emotional factors can influence recurrences and response to treatment. Dr Varghese noted that the veteran was diagnosed with ‘chemical dermatitis’.
Dr Varghese considered that the veteran’s ability to work as a drinks waiter is not an occupation in keeping with social anxiety or social withdrawal and that his personality was described positively by Dr Howard. Dr Varghese also reported that the veteran maintained a stable relationship up until his death with the applicant, who he met when he was around 65 years old.
Dr Varghese considered that there was no compelling data to indicate that the veteran suffered from any psychiatric disorder including depressive disorder, generalised anxiety disorder or a post-traumatic stress disorder related to service or other factors. Dr Varghese considered that while the veteran may have experienced traumatic events during the Tarakan campaign, it did not follow that this would have resulted in post-traumatic stress disorder.
Supplementary report of Dr Frank Varghese dated 26 June 2018
Dr Varghese provided a supplementary report dated 26 June 2018 in response to specific questions provided by the respondent after the hearing of this application. The report was provided within the context of the respondent’s final written submissions.
Dr Varghese confirmed that he disagreed with Dr Rees’ opinions and considered there to be no evidence that the veteran suffered any clinically significant disorder of mental health as specified in accordance with SoP No. 1 of 2016. Dr Varghese also considered that the veteran did not seek treatment from a psychiatrist, counsellor or general practitioner for any disorder and there is nothing in the documentation suggesting the veteran warranted ongoing management.
CONSIDERATION
There are some preliminary matters that need to be determined.
First, prior to the hearing of this application there was an issue whether the veteran and the applicant were in a relationship from about 1989 until the time of the veteran’s death in May 2015. On the second day of the hearing the respondent indicated that it would not press the point made in its statement of facts, issues and contentions that put in issue whether the applicant and the veteran were in a de-facto relationship at all relevant times. I am satisfied that it was proper for the respondent to take this attitude having regard to the factors in s 11A of the Act. There is evidence concerning the nature of the de-facto relationship. I give great weight to the fact that in 2007 the veteran had described himself as “partnered”.[26] I accept the evidence of Dr Howard, the daughter of the applicant, that the applicant and the veteran had a commitment to each other. There is evidence of the financial relationships of the applicant and the veteran in that there is evidence that the applicant and veteran held the Hazeldean property as joint tenants. The title search as at 8 May 2018 indicates that the Hazeldean property was transferred from the veteran’s name to the veteran’s and applicant’s names as ‘joint tenants’ effective from 27 July 2007.[27] The title search also indicates that the property was later transferred out of their names on 6 June 2013 to third parties.[28] The applicant and the veteran both lived together in that property which is certainly indicative of the parties being in a de-facto relationship. In my opinion the issue of whether the applicant and veteran were in a de facto relationship should have been thoroughly investigated by the respondent prior to the hearing.
[26] Exhibit H, Summons documents.
[27] Exhibit I, Title Search dated 8 May 2018.
[28] Exhibit I, Title Search dated 8 May 2018.
Second, I am required to make a finding as to the kind of death suffered by the veteran having regard to s 120A of the Act. This was explained by Selway J in Repatriation Commission v Hancock [2003] FCA 711 at [9]. In reliance on the death certificate, I find that the death of the veteran at a time when he had bronchopneumonia was caused by chronic obstructive pulmonary disease and ischaemic heart disease. These causes of death are accepted by both parties as being the cause of the veteran’s death. There can be more than one medical cause for the death of a veteran.[29]
[29] See Collins v Repatriation Commission (2009) 177 FCR 280 at 289 -290.
Third, I must be satisfied that the applicant was a ‘dependent’ of the veteran, I find that the applicant was his partner (see definition of ‘partner’ in s 11 of the Act) and that they were living as members of a couple in a de-facto relationship at the time of his death.
I have to also be reasonably satisfied that the applicant had operational service for the purposes of s 6C(1) of the Act. The records indicate that the veteran had ‘operational’ service between 5 November 1941 and 19 December 1945. The applicant is eligible for a pension if it can be shown that the veteran’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP.[30]
[30] Veteran’s Entitlement Act 1986, section 120A.
There needs to be the diagnosis of a disease. This was explained by the Full Court in Repatriation Commission v Warren [2008] FCAFC 64. Lindgren and Bennett JJ remarked (at [22]):
The operation of ss 120 and 120A of the VE Act and of SoPs made under s 196B of that Act has been discussed in Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Deledio’) and subsequent cases. In Deledio, the Full Court laid down a course comprising four steps that should be followed in an assessment of whether the incapacity of a veteran from, relevantly, a disease is related to service rendered by that person. It was common ground on the hearing that the Deledio four steps are preceded by an inquiry as to whether a veteran is incapacitated from a "disease". Thus, it was common ground that this pre-Deledio step of whether there is a diagnosis of a disease as a matter of clinical assessment, must be resolved before Deledio requires the four steps noted at [26] below to be taken to determine the question of connection with service.
Logan J (at 105) emphasised that a SoP made under the Act had no role to play in the making of this diagnosis.
The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (‘Deledio’) formulated this four-step process when assessing the hypothesis:[31]
(1)The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(2)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(3)If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
(4)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.
[31] Repatriation Commission v Deledio (1998) 83 FCR 82 at [82] to [83].
There have been a number of decisions of the Federal Court of Australia concerning the application of the Deledio principle. A relevant decision is Summers v Repatriation Commission,[32] where a Full Court of the Federal Court of Australia approved Heerey J’s formulation in Deledio at first instance, approved by the Full Court, where his Honour said:[33]
“...the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes....
...it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
...The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP”.
[32] Summers v Repatriation Commission (2007) 230 FCR 179 (Kenny, Murphy and Beach JJ).
[33] Deledio v Repatriation Commission (1997) 47 ALD 261 at 273-275.
In Forrester v Repatriation Commission (‘Forrester’),[34] Mortimer J observed that in Collins v Administrative Appeals Tribunal (‘Collins’),[35] Allsop J (as he then was) explained that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of sections 120 and 120A of the Act.
[34] [2013] FCA 898 at [26].
[35] (2007) 163 FCR 35 at [31].
Step 1 of Deledio
The first Deledio step requires the examination of the material to ascertain whether it points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. Whether the material points to or supports a hypothesis is a matter which can be determined by inference or assumption.[36] It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[37]
[36] Ellis v Repatriation Commission [2014] FCA 847, at [15]; Forrester v Repatriation Commission [2013] FCA 898, at [30].
[37] Repatriation Commission v Stares (1996) 66 FCR 594 at [601].
The applicant submits that the veteran suffered from a generalised anxiety disorder within a short period of his experiences at Tarakan; or alternatively the veteran suffered from post-traumatic stress disorder well before the onset of his ischaemic heart disease in 2007.
I consider that the material before me raises a number of possible hypotheses:
·The veteran’s tobacco consumption caused the chronic obstructive pulmonary disease condition which caused death;
·The veteran’s tobacco consumption caused the ischaemic heart disease condition which caused death; and/or
·The veteran’s mental health condition of post-traumatic stress disorder and/or anxiety caused ischaemic heart disease which caused death.
Step 2 of Deledio
There is no issue that the relevant SoPs which are in force are SoP No. 37 of 2014 relating to Chronic Obstructive Pulmonary Disease, SoP No. 82 of 2014 relating to Post Traumatic Stress Disorder, SoP No 102 of 2014 relating to Anxiety Disorder and SoP No. 1 of 2016 relating to Ischaemic Heart Disease condition.
Step 3 of Deledio
The applicant relies upon the principles set out in Collins at [48] where:
·The Tribunal must consider the whole of the material before it;
·The Tribunal must form an opinion as to whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of the service;
·The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis;
·At the stage of formation of the opinion, no question of fact finding arises;
·The formation of the opinion involves the reaching of a factual conclusion and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material.[38]
[38] Collins v Administrative Appeals Tribunal (2007) 163 FCR 35.
The applicant in initial submissions indicated that the Tribunal is not required to determine if there is direct evidence to satisfy if the veteran probably experienced a Category 1A stressor, but rather it is sufficient if the evidentiary material points to this fact. In final submissions, the applicant made similar submissions concerning a Category 1B Stressor. The respondent submits that a hypothesis can only be reasonable if the material raises all of the essential elements prescribed by the SoP,[39] and it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met.[40]
[39] See Repatriation Commission v Hill [2002] FCAFC 192, at [55].
[40] See Ellis v Repatriation Commission [2014] FCA 847, at [63].
Recently, in Stevens v Repatriation Commission [2018] FCA 1866 (at [24]) Logan J referred to Collins, where the Full Court observed:
“The dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern”.
I have to consider whether a reasonable hypothesis has been raised which points to the various conditions of the veteran being connected with his operational service. There is a requirement of s 120A of the Act which requires that I consider if a SoP upholds the hypothesis. I will outline my consideration of the various conditions.
Chronic Obstructive Pulmonary Disease
The relevant factor in SoP No. 37 of 2014 is factor 6(a) which refers to where a veteran has been “smoking at least five pack-years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease”.
It is not apparent when the clinical onset of the chronic obstructive pulmonary disease condition was. The death certificate contains remarks that the duration of the condition was for “years”.[41]
[41] Exhibit A, T-Documents, T7, p. 33.
I also have to consider whether there was the prescribed consumption of tobacco that is specified in factor 6(a) in SoP No. 37 of 2014. The definition of a “pack-year of cigarettes, or the equivalent thereof in other tobacco products” in factor 9 of SoP No. 37 of 2014 means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of 1 calendar year or 7300 cigarettes. Therefore smoking “5 pack-years” is the equivalent of smoking one packet of 20 cigarettes a day for 5 years.
In the smoking questionnaire that was completed by the applicant, she indicated that the veteran first started smoking on a regular basis in 1942 and stopped smoking permanently in approximately 1950.[42] The applicant in the smoking questionnaire remarked: “He smoked before I met him so I never asked him what or how much”. Dr Howard gave evidence that the veteran “never told me when he started to smoke or when he finished smoking” and “my mother has told me that she herself also had no detailed information as to Ed’s smoking history”. In an email she remarked that “we know that he smoked, but not how much”.
[42] Exhibit A, T-Documents, T5, p. 20.
In an email dated 14 September 2015 Mr David Lee, the brother of the veteran, was unable to say how many cigarettes the veteran had smoked.
In an email dated 14 September 2015 Dr Howard quoted an extract from an email by Mr Andrew Lee, the son of the veteran.[43] The original email of Mr Andrew Lee was not in evidence but it is apparent that he informed the Legacy Community Services Officer as follows: “When I spoke to Lisa I did say to her that Dad was not smoking when I was born but I did know he used to smoke”. Mr Andrew Lee also remarked “at a best guess he would have smoked probably 7-9 packets a week”. Mr Lee did not provide a signed statement or give evidence before the Tribunal.
[43] Exhibit A, T-Documents, T10 p. 48.
There is an entry dated 25 July 2007 in a Greenslopes Hospital assessment record in which the veteran stated that he last smoked in 1945.
Dr Palazzo has indicated that it is likely the veteran would have received cigarettes during his service because the then operational ration included cigarettes. This certainly raises a service connection as required by clause 4 of SoP No. 37 of 2014.
Dr Palazzo in giving evidence quite properly remarked that it would not be possible to quantify how much the veteran smoked on each day of service. I have earlier referred to an extract from an email of Mr Andrew Lee who stated that the veteran did not smoke after he was born. This email as well as the assessments of the applicant and Dr Howard can only be regarded as speculation. Mr Lee had informed the Legacy Community Services Officer that “at a best guess he would have smoked probably 7-9 packets a week”. That information which is a ‘guess’ is too vague upon which to base a hypothesis.
In Forrester, Mortimer J explained: (at [32]): “A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it...” The SoP does not uphold a reasonable hypothesis that the smoking habit of the veteran caused chronic obstructive pulmonary disease. This is because there is no material before the Tribunal which points to the veteran having smoked at least five pack-years of cigarettes before the clinical onset of chronic obstructive pulmonary disease as specified by factor 6(a) of SoP No. 37 of 2014. Neither the applicant, Dr Howard nor the son of the veteran ever saw the veteran smoking. The veteran himself stated that he last smoked in 1945. I have therefore concluded that there is no reasonable hypothesis that the smoking habit of the veteran caused the veteran’s chronic obstructive pulmonary disease.
Ischaemic Heart Disease
The relevant factor that is relied upon by the applicant is factor 9(6) of SoP No. 1 of 2016 which specifies the following situations where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(a) smoking at least one half pack-year but less than five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation;
(b) smoking at least five pack-years but less than 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease, and the clinical onset of ischaemic heart disease has occurred within 20 years of smoking cessation; or
(c) smoking at least 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease.
At this stage of my review I am not engaged in any fact-finding exercise. There is no material before me which points to the veteran having the level of consumption of tobacco as specified in paragraphs (a), (b) and (c) of factor 9(6) of SoP No. 1 of 2016. In addition, the material does not point to the temporal requirements in paragraphs (a) and (b) of the factor being met. This is because as previously mentioned there are documents before the Tribunal which refer to the veteran having ceased smoking in 1945 and 1950. The veteran himself in his health statement had stated that he last smoked in 1945. The applicant who was in a relationship with the veteran from 1989 had not seen him smoke and she believed that he last smoked in 1950. The clinical onset of ischaemic heart disease occurred in 2007.
The other relevant factor in SoP No. 1 of 2016 that is relied upon is factor 9(19) which refers to the veteran having a clinically significant disorder of mental health as specified, for at least the 5 years before the clinical onset of ischaemic heart disease.
Section 6 of SoP No. 1 of 2016 defines in Schedule 1 the expression “clinically significant disorder of mental health as specified” to mean one of the following conditions, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner:
(a) agoraphobia;
(b) anxiety disorder;
(c) depressive disorder;
(d) panic disorder;
(e) post-traumatic stress disorder;
(f) schizophrenia; or
(g) social anxiety disorder.
I accept the submission of the applicant that the definition should not be given a narrow construction so that it only applies where a veteran has a condition which has actually involved regular visits to a psychiatrist, counsellor or general practitioner. The definition, however, requires that the condition must be of sufficient severity to warrant such ongoing management. The mental health conditions in the definition which are raised by the veteran are anxiety disorder and post-traumatic stress disorder. There is also a suggestion that there was social withdrawal.
On 20 August 2007 the veteran was diagnosed with ischaemic heart disease and I have determined that this is the date of the clinical onset of this condition. There is no submission that there was any earlier date for the clinical onset. I certainly accept the submission from both the applicant and respondent that the issue before the Tribunal was whether there was material that points to the veteran having suffered from a clinically significant disorder of mental health in the period from August 2002 to August 2007. This is because SoP No. 1 of 2016 refers to a period of at least five years before the clinical onset of ischemic heart disease.
The period from 2002 to 2007 was the focus of questions that were put to both Dr Rees and Dr Varghese when they were giving evidence at the hearing. There is no evidence that the veteran had ever in his lifetime been diagnosed with a clinically significant disorder of mental health. It is of course not necessary for the veteran to have been actually diagnosed with such a condition. The veteran had in medical questionnaires from 2005 and 2007 denied having any emotional difficulties. I accept that the veteran may have been suffering from such a condition even if he denied having such a condition. Dr Rees certainly indicated from his extensive experience in treating veterans that such behaviour was commonplace.
There is certainly a difference in specialist opinion as to whether during that period from 2002 to 2007 the veteran had a clinically significant disorder of mental health.
Dr Varghese in his report dated 12 October 2017 concluded that the veteran did not have a clinically significant disorder of mental health for at least the five years before the clinical onset of the ischaemic heart disease. In his later report dated 26 June 2018 Dr Varghese remarked:
“There is no evidence that the deceased had any of the disorders (a) to (g). Moreover he did not seek treatment from a psychiatrist, counsellor or general practitioner for any of these disorders over the material time. There is nothing in the documentation to suggest that he warranted ongoing management with regular visits to practitioners. Thus whatever putative symptoms he might have had were not of sufficient severity”.
Dr Varghese gave his opinion after reviewing the medical records of the deceased, as well as the evidence of Dr Howard. Dr Varghese explained in his evidence the importance of being able to review and consider the source medical records in formulating a medical opinion in circumstances where important negating data such as the veteran’s responses to health questionnaires including mental health history questions were not reviewed by Dr Rees prior to his report.
Dr Rees is of a contrary opinion to Dr Varghese and considers that there is a reasonable hypothesis that the veteran suffered from an anxiety disorder dating back to around the time of his military service, and that on the balance of probabilities he did suffer from a generalised anxiety disorder as a result of his military service.
During cross-examination, Dr Rees was certainly honest in confirming that he had not reviewed any of the medical records of the veteran. It was then apparent that the reference that Dr Rees had made in his report to the “medical progress notes” was in fact a reference to a summary of the medical notes that was prepared by the solicitors for the applicant. Dr Rees remarked that he was not aware that the summary entitled the ‘Edwin Robert Lee Medical Chronology’ had been prepared by the solicitors for the applicant. Dr Rees also confirmed that his report was based upon the statement of Dr Howard, the report of the Dr Palazzo and the medical summary prepared by the solicitors. Dr Rees agreed with the proposition that was put to him in cross-examination that if he was provided with a full copy of the medical records of all of the treating doctors and the source material that would be information that would be of assistance to him in forming his opinion.
Initially, when Dr Rees gave his evidence-in-chief he did not give evidence as to whether the veteran had a mental health condition of sufficient severity to warrant ongoing management as set out in section 6 of SoP No. 1 of 2016. Dr Rees was also not questioned on this issue by the respondent. In the circumstances, the Tribunal thought that it was fair and appropriate to grant leave to the applicant to enable Dr Rees to give evidence on this issue. The Tribunal in administering beneficial legislation should ensure that an applicant is afforded the fullest opportunity to present his or her case.
Dr Rees upon being recalled by the applicant confirmed that he understood the definition in the relevant SoP and that he considered that the veteran did suffer from such a disorder. Dr Rees gave the following reasons for his conclusion:
“Yes, I do believe that he did. I think that if Mr Lee had come to see me – I mean, obviously there are bits of the history that are missing, but I would be actively treating a number of things, you know, including I guess the disturbed sleep with the kicking out and the lashing out. The social withdrawal I think suggests that there was a clinically significant issue there. The evidence of ongoing anxiety with a pruritis ani and the dermatitis that would flare up, I think I would be – yes, I would certainly believe that he had a clinically significant disorder, yes, and if I was treating him, yes, I would probably – initially monthly, but probably less than that once his condition became stabilised”.
Dr Rees was questioned by the respondent about the indicators that someone has post-traumatic stress disorder or an anxiety disorder which is of sufficient severity to warrant ongoing management to the degree described. Dr Rees remarked that he would be interested in “accurately treating any flashback phenomenon, any nightmares. So, obviously I haven’t had the opportunity to really find out about nightmares in this man, but we did have some evidence that he was getting exaggerated startle responses and probable flashbacks”. Dr Rees stated that apart from flashbacks, he would look for signs of disturbed sleep. Dr Rees stated that thrashing at night is often indicative of nightmares or revivification. Dr Rees also confirmed that exaggerated startle could also be assisted with cognitive behavioural therapy.
Dr Rees was questioned by the respondent about the medical history of the veteran in the period of time between 2002 and 2007. Dr Rees was asked about evidence of flashbacks in that period; Dr Rees answered: “Well, that was simply the report from the step-daughter of at least two occasions”. Dr Rees was asked whether it was his understanding that there were at least two occasions between 2002 and 2007 when the veteran had flashbacks; Dr Rees answered: “I don’t know what the dates were. I don’t have that information in front of me”. Dr Rees was asked if he had assumed that they were in that period of time in 2002 to 2007. Dr Rees answered: “No, not really, but I guess what I have assumed is that if he was having them earlier, those are the sorts of things that don’t tend to go away unless treated. So, if he was having them in the 80s or 90s, then you know, they tend to continue. Without the notes in front of me, it is very difficult to comment on the 2002 to 2007”. Dr Rees added: “What I could say is that untreated, this is not the sort of disorder that disappears and quite frankly, those memories don’t disappear. Without some sort of a mediation, the symptoms would tend to continue”.
Dr Rees was asked what evidence there was that there was exaggerated startle in the period between 2002 and 2007. Dr Rees answered: “I can’t comment on the date, it was from the report from the step-daughter”. Dr Rees was asked if it was an assumption that he was making that it continued in that period of time. Dr Rees answered: “I think it is reasonable to believe that, yes. I mean, these were – I guess the two that were witnessed, there would have been – you know, if you were to accept that these were flashbacks, it is reasonable to accept that many of these would happen when there wasn’t a witness”. Dr Rees when asked: “We don’t have evidence about that?” answered: “Well, we can’t have evidence if something is not witnessed, you are correct”.
I have reviewed the material before me concerning the sleep pattern of the veteran. In her statement, Dr Howard remarked (at [18]): “My mother told me that she has no recollections of Ed suffering nightmares apart from the occasion bad dream, but he would regularly kick the blankets off during the night whilst asleep”. In her evidence Dr Howard remarked: “Mum would regularly – nearly every day – have to change his pillow slip. He just sweated profusely from probably the back of his head, I’m not sure”. Dr Rees in his evidence-in-chief adverted to the issue of sleep disturbance in the context of what he considered to be the previous history of anxiety. After Dr Rees was recalled he remarked that what was “clinically significant, was this man’s excessive sweating that required frequent changing of linen, and that is a very common symptom in PTSD”. When Dr Rees was recalled he was asked in cross-examination about the sleep pattern of the veteran. Dr Rees was not able to confirm what he was relying on as the nature of the disturbed sleep between 2002 and 2007.
Dr Rees was also not able to confirm when there was exaggerated startle, flashbacks or social withdrawal in that period. Dr Rees remarked that if symptoms were present prior to the period from 2002 to 2007, it is very likely without treatment that these symptoms would continue. Dr Rees was asked if he was aware that on one of the health questionnaire forms completed in 2007, which was attributed to Mr Lee and the neurosurgeon, the veteran had indicated “No” to the question of “Do you have trouble sleeping?” Dr Rees answered: “I think you alluded to that yesterday. Yes, so I didn’t know that…” In the context of whether the veteran had disturbed sleep, Dr Rees remarked: “That thrashing about at night, that is, you know, that is indicative very often of nightmares or revivification”. However, I have previously mentioned that in her statement Dr Howard remarked that her mother told her that she had no recollection of the veteran suffering nightmares. In giving evidence Dr Varghese put forward an explanation that the veteran kicking the blankets off may be explained by his dermatitis.
One of the matters that Dr Rees based his opinion that the veteran had a clinically significant disorder of mental health of a severity to warrant ongoing management was the social withdrawal of the veteran. Dr Rees was asked what he understood was the veteran’s social withdrawal in the period of 2002 to 2007. Dr Rees answered: “Once again, he would avoid crowds, he wouldn’t like to go shopping and he exhibited nervousness in those situations”. Dr Rees was asked for the basis of his understanding that the veteran avoided crowds and shopping in that period of time. Dr Rees answered that it was the report from the step-daughter and that he did not have a copy of that to hand. Dr Rees remarked that he did not have a note of exactly what aspect of her evidence he relied on in that regard.
Dr Howard gave evidence as to the social activities of the veteran. At the hearing Dr Howard referred to a photograph showing the applicant and the veteran together at a nursing home that was taken around 2012. She remarked: “They used to get picked up every week by the local bus and go to the social activities there”. Dr Howard also mentioned that when the applicant and the veteran lived at the lakeside property they would have social activities including a happy hour with the neighbours every Sunday. The material before me does not point to the veteran having social withdrawal in the period of 2002 to 2007.
Dr Rees was asked about excessive drinking by the veteran in the period between 2002 and 2007. Dr Rees answered: “As I say, I can’t speak to 2002-2007 with honesty and accuracy but my recollection is that he was drinking six to eight standard drinks a day, and I cannot recall if that was in the 2002-2007 period”. Dr Rees was asked about evidence of constant fidgeting in that period and was unable to comment stating: “Yes, I couldn’t tell you whether that was during that time or before that time or continuous throughout those periods”. Dr Rees also could not comment on the excessive sweating for that period but he stated that if the symptoms were present in the 80s and 90s, without treatment, then they would continue.
Dr Rees remarked that he took evidence from family members as being very important. It was put to him that he had taken various indicators outlined in Dr Howard’s statement that did not happen in the period from 2002 to 2007, with the example of a flashback that was described as taking place in 1991. Dr Rees answered: “Okay”. It was further put to Dr Rees that he had been taken to various indicators and had assumed that those things continued in the period between 2002 and 2007. Dr Rees answered: “Well, if there was no mention of them in 2002-2007, yes”.
Dr Rees made assumptions that events concerning the veteran as told by Dr Howard when she was in Australia would continue into that period between 2002 and 2007. Dr Rees had assumed that the veteran had social withdrawal during that period from 2002 to 2007: however, Dr Howard gave evidence of the weekly social activities of the veteran as late as in 2012. Dr Rees quite properly stated that he was unable to speak with honesty and accuracy as to the excessive drinking of the veteran during that period although he recalled that the veteran was drinking six to eight standard drinks per day. However, health history questionnaires completed by the veteran during that period indicated a lower level of alcohol consumption. A health history questionnaire that was completed by the veteran in 2005 indicated that he consumed on average two wines a night. Another health history questionnaire that was completed by the veteran in 2007 indicated that he consumed on average two drinks a night. The applicant in 2015 stated that the veteran only occasionally consumed alcohol. Dr Rees referred to one flashback that occurred in 1991 but was unable to state whether the veteran had flashbacks during the relevant period between 2002 and 2007. Dr Rees considered that the veteran had disturbed sleep and relied upon thrashing about at night which he said was indicative very often of nightmares or revivification. However, Dr Rees was unaware that in 2007 the veteran had indicated that he did not have trouble sleeping.
The opinions of Dr Rees were made upon the assumption that a summary of the medical records were the actual medical records. Dr Rees did not review the available medical records which contained indications that the veteran himself had stated on two occasions that he did not have any mental health disorder. I appreciate that Dr Rees remarked that most veterans would deny having a mental health complaint; however, it was not put forward that there was any indication in the medical records of the veteran having any symptoms of such a condition. Dr Rees was not able to point to any material which indicated that the veteran had symptoms of any mental health condition during the period between 2002 and 2007. Dr Rees In his report dated 26 May 2017 remarked that the veteran was in the first wave of the battle of Tarakan which involved heavy casualties. There is certainly material before the Tribunal to indicate that the unit of the veteran suffered heavy losses. However, Dr Palazzo reported that the landing of the unit of the veteran was unopposed.
After reviewing the material before me I have concluded that the hypothesis that is put forward that the veteran had a clinically significant disorder of mental health in the period between 2002 and 2007 and before the clinical onset of ischaemic heart disease is not reasonable. I consider that the hypothesis that is put forward by Dr Rees is “too tenuous” to utilise the terminology of Heerey J in Deledio. My observations are in no way a criticism of Dr Rees who gave evidence based on the material which was presented to him, nor are they a criticism of the applicant having regard to the difficulty of assembling the necessary material in a case such as this.
In order for the applicant to succeed it is certainly not necessary for me to make a finding that the veteran had a mental health condition during the period of 2002 to 2007. However it is necessary that there is material which points to the veteran having suffered from a mental health condition. The material before me in my view does not point to the veteran during that period having ever suffered from either posttraumatic stress disorder or an anxiety disorder or any other mental disorder. The material before me does not point to the veteran having disturbed sleep, exaggerated startle, flashbacks or social withdrawal in the period of time between 2002 and 2007. The material before me does not point to the veteran having a mental health condition during that period let alone a clinically significant disorder of mental health.
The only indication in the material before me that there was any mental disturbance on the part of the veteran was after the craniotomy surgery in July 2007. The medical records refer to “features of depression” after the surgery in October 2007.[44] At the hearing Dr Rees had indicated that he had not seen these medical records. After the craniotomy surgery the veteran was commenced on Zoloft. Some four months after his surgery in December 2007 the veteran was reviewed a record was made that the “overall demeanour is significantly improved”.[45] There was no indication from these records that the veteran had any clinically significant disorder of mental health that required management of regular visits as required by SoP No. 1 of 2016.
[44] Exhibit H, Summons documents.
[45] Exhibit H, Summons documents.
The features of depression occurred after the veteran underwent brain surgery and do not satisfy the temporal requirement of factor 9(19) of SoP No. 1 of 2016 because those features occurred after, and not before, the clinical onset of ischaemic heart disease. Dr Rees commented that the administration of Zoloft 50mg to the veteran in 2015 was in a setting of end-stage renal failure and congestive heart failure.
Category 1A or Category 1B stressor
The applicant in the supplementary outline of submissions has explained that the case of the applicant has been framed on the basis that the material before the Tribunal points to the veteran having experienced a category 1A stressor for the purposes of SoP No. 1 of 2016 concerning ischaemic heart disease. In later submissions the applicant placed reliance on the veteran having experienced a category 1B stressor. The respondent has pointed out that the applicant did not in the supplementary outline of submissions refer to any specific factor in SoP No. 1 of 2016. I have examined the factors in section 9 of SoP No. 1 of 2016 which refer to either a category 1A or a category 1B stressor. The material before me does not point to a service connection concerning factors 9(43)(b) and (c) and 9(86)(b) and (c) having regard to the temporal requirements of these factors which refers to a category 1A or a category 1B stressor within 48 hours of the clinical onset or clinical worsening of ischaemic heart disease. The operational service of the veteran ceased in 1945 and the clinical onset of the ischaemic heart disease condition was in 2007. Accordingly SoP No. 1 of 2016 does not uphold a reasonable hypothesis that the ischaemic heart disease of the late veteran is service related.
In considering the submissions concerning a category 1A and a category 1B stressor concerning the mental health condition of the veteran I have also considered the application of SoP No. 82 of 2014 concerning posttraumatic stress disorder and SoP No. 102 of 2014 concerning anxiety disorder. I have considered factor 6(a) of SoP No. 82 of 2014 which requires the experiencing of a category 1A stressor before the clinical onset of posttraumatic stress disorder and factor 6(b) of that SoP which requires the experiencing of a category 1B stressor before the clinical onset of posttraumatic stress disorder. There is reference to a category 1A and a category 1B stressor in factors 6 (d), (h), (i) and (k) in SoP No. 82 of 2014. I also have examined factors 6(a)(ii) and (iii), (c) and (d) of SoP No. 102 of 2014 which makes reference to a category 1A and a category 1B stressor. I have previously determined that the material before me does not point to the veteran having a clinically significant disorder of mental health for at least five years before the clinical onset of ischaemic heart disease in terms of factor 9(19) of SoP No. 1 of 2016. I have also previously determined that the material before me does not point to the veteran having suffered from either posttraumatic stress disorder or an anxiety disorder. I have therefore concluded that SoP No. 82 of 2014 and SoP No. 102 of 2014 do not uphold a reasonable hypothesis that the death of the late veteran is connected with his service.
I have also reviewed the considerable medical records that are in evidence before me. I was not able to find any material that would raise consideration of any other factor in the SoPs. For instance, I do not consider that there is any material that would raise a reasonable hypothesis relating to a causal link relating to hypertension. The parties have been afforded procedural fairness to make submissions after the amendment of SoP No. 1 of 2016.
After considering of the whole of the material before the Tribunal I have concluded that the material does not raise a reasonable hypothesis connecting the death of the late veteran with his service. I have therefore determined pursuant to s 120(3) of the Act that the Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the late veteran was war-caused.
The veteran at a young age volunteered to defend Australia at a time when the very existence of our nation was under threat. I acknowledge the service of the veteran who served in a theatre of war and the sacrifices he made for our country. I further acknowledge the role of the applicant in caring for the veteran as his health deteriorated. However, under the scheme of the Act, I am unfortunately unable to grant this application.
DECISION
I affirm the decision under review.
I certify that the preceding 137 (one hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
..........................[sgd]...........................................
Associate
Dated: 28 January 2020
Dates of hearing:
8 May 2018
9 May 2018Date final submissions received: 8 October 2019 Counsel for the Applicant: Mr A. C. Harding Solicitors for the Applicant: Terence O'Connor Solicitor Solicitors for the Respondent: Mr M Hawker, Sparke Helmore
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