Margetts and Repatriation Commission

[2001] AATA 879

DECISION AND REASONS FOR DECISION [2001] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1377
VETERANS' APPEALS DIVISION
  Re:         SYDNEY ARNOLD MARGETTS
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             23 October 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the secondary cardiomyopathy suffered by the applicant is war-caused with effect from 26 August 1999.

(sgd) G.D. Friedman
  Member
VETERANS' AFFAIRS - veterans' entitlements - secondary cardiomyopathy - excessive consumption of alcohol - whether war-caused
Veterans' Entitlements Act 1986 s9, 119(1)(h), 120(1), 120(3), 120(4)
Re Bridgeman and Repatriation Commission (AAT 12658, 29 January 1998)
Critch v Repatriation Commission  (1996) 43 ALD 574
Lowerson v Repatriation Commission (1994) 33 ALD 385
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission vLaw  (1980) 31 ALR 140
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

23 October 2001  G.D. Friedman, Member

1. This is an application by Sydney Arnold Margetts (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 20 October 2000.  The VRB affirmed a decision of a delegate of the respondent dated 5 January 2000 to refuse a claim for disability pension for incapacity from ischaemic heart disease and primary cardiomyopathy. 

2. At the hearing of this matter on 5 September 2001 and 10 October 2001 the applicant was represented by Ms J. Bornstein of Counsel and the respondent was represented by Mr G. Purcell of Counsel.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T96), together with four exhibits lodged by the applicant (Exhibits A1-A4) and two lodged by the respondent (Exhibits R1-R2).  The Tribunal heard oral evidence from the applicant.
   BACKGROUND

4. The applicant was born on 25 April 1927.  He left school when aged 14 years and worked as a labourer until joining the Australian Army on 11 June 1945.  His service included a 20-month tour of duty with the British Commonwealth Occupation Force in Japan.  Whilst in the Army he injured his right knee and contracted hepatitis.  He claimed that before enlisting in the Army he was a non-smoker and a non-drinker.

5. On discharge from the Army on 23 January 1948 the applicant undertook various labouring jobs until he commenced automotive studies and subsequently operated his own business as an auto electrician.  In about 1980 he developed symptoms of weakness and general malaise, and was diagnosed as suffering from anaemia.  In 1989 he was diagnosed as suffering from an ulcerated lipoma (tumour) in the small intestine and the lipoma was removed surgically.  In about 1993 he underwent a cardiac evaluation and was told his heart was diseased.  Two years later he developed shortness of breath and chest pains, and in 1999 was diagnosed as suffering from cardiomyopathy.

6. On 26 November 1999 the applicant lodged an application with the respondent for medical treatment and disability pension for incapacity from ischaemic heart disease and primary cardiomyopathy.  On 5 January 2000 the respondent refused the application on the grounds that the conditions were not war-caused.  On 21 August 2000 the VRB affirmed the decision in relation to ischaemic heart disease and adjourned the hearing in relation to cardiomyopathy pending further investigation.  On 20 October 2000 the VRB amended the diagnosis from primary cardiomyopathy to cardiomyopathy and affirmed the decision under review on the grounds that alcohol consumption was not war-caused.

7. On 15 November 2000 the applicant sought review by the Tribunal of both decisions of the VRB.  On 29 June 2001 the applicant's solicitors informed the respondent that the applicant's doctors had advised the applicant that there was no evidence of ischaemic heart disease.  Therefore the applicant had decided not to pursue that claim.  In its Statement of Facts and Contentions dated 30 August 2001 the respondent conceded that the applicant suffered from secondary cardiomyopathy, but did not concede that the alcohol consumption was causally related to operational service.
   EVIDENCE

8. The applicant told the Tribunal that he commenced drinking alcohol and smoking after enlisting in the Army.  He said that peer group pressure, the ready availability of alcohol and the lack of recreational activities at the bases where he was stationed in Australia and Japan caused him to commence drinking heavily.  He told the Tribunal that he drank the equivalent of three or four 750-ml bottles of full-strength beer each day except when he was on guard or other duty.  There was no limit to the amount of alcohol that could be purchased.  He said that he frequently became intoxicated.  In Japan there were long periods of inactivity, including periods when heavy snow prevented him from leaving the base, and this provided ample opportunity for binge drinking.

9. The applicant stated that after his discharge from the Army he continued to drink to the same degree, both at home and after work.  He explained that in about 1981 he suffered anginal pain and breathlessness, and was told by a doctor that this was probably a heart attack, although he did not seek medical treatment.  In 1984 the applicant retired from his business after suffering from anaemia, which he said was not diagnosed for some years.  He said that he had been feeling unwell since about 1980.

10. In the 1950s the applicant underwent medical examinations for possible recurrence of hepatitis and for liver damage.  In his evidence at the hearing and in a written statement dated 9 November 2000 the applicant stated that whilst undergoing tests in the 1980s to ascertain the cause of his ill-health he was admonished by a doctor for his high level of alcohol consumption.  He said that as he was unable to reduce his consumption.  He was embarrassed to admit to drinking heavily, so he lied to doctors during medical examinations by understating his actual consumption.  Under cross-examination he said that for the same reasons he has lied to doctors since 1951.  For instance on 2 March 1951 his level of consumption is recorded as Beer occasional glass.  In a medical examination dated October 1957 under the heading Personal Habits the examining doctor has recorded 4 daily, although there is no indication in the report whether this refers to four ounces (as specified on the form) or some other measurement.  On 31 March 1970 a medical history records Alcohol – 8 gls/day, which the applicant stated could have referred to 8 glasses (either 200ml or 280 ml) per day.

11. On 19 March 1985 a visiting specialist physician carried out tests and recorded that:  Drinking alcohol seems to exacerbate his epigastric pain (e.g. after 1-2 glasses of beer).  The physician drew up a plan that included a low alcohol diet, which the applicant stated was not implemented.  A history sheet at a hospital, dated 7 May 1988, notes the estimated alcohol consumption as 2 bottles/night – 1 bottle/night last few years.  Had been a heavy drinker.  On 21 August 1990 an examination by a medical officer of the Department of Veterans' Affairs notes:  Can't drink beer at all.  Crook if he drinks couple glasses of beer.  Another history sheet, dated 29 October 1990, notes:  Alcohol – occasional stubbie lite ale only.  An Accident and Emergency record sheet, dated 26 April 1991, notes:  occasional drinker, used to be heavier.  The sheet also notes an estimated alcohol consumption of 10g/d on avg (backed up by wife) which the applicant explained was probably 10 glasses per day.

12. A history sheet, dated 27 April 1991, notes alcohol 10 g/day which the applicant stated may have been 10 glasses per day. A history sheet, dated 5 May 1995, notes 3-4 beers/d which the applicant stated may have been 3-4 glasses of beer per day.  A history sheet at South Coast Medical Centre, dated 10 April 2000, includes . . . alcohol intake that is preceded by an upward arrow symbol.  A further sheet from the same medical centre, dated 31 August 2000, appears to note:  alcohol – now – not daily – 2-3 times per week 5-6 beer cans at a time and past – every day – 6 or more cans daily for 40 years.  Dr N. Stitt, general practitioner, of the West Rosebud Branch of South Coast Medical Centre stated in a letter also dated 31 August 2000:  He is a known heavy drinker – in the past 6 or more cans of beer daily.

13. The applicant told the Tribunal that the entries listed above demonstrate that he understated his alcohol consumption significantly on a consistent basis.  He said that in view of the time that has elapsed since his Army service he knows of nobody who would be able to substantiate his claims.  Under cross-examination the applicant denied that the entries represented the true situation regarding his level of alcohol consumption since his Army service.  He maintained that he realised in April 2001 that he should now be truthful about his alcohol consumption over the years, particularly in view of his application for benefits.  On the question of inconsistencies between the answers to various questionnaires concerning his smoking habits as an indication of his lack of credibility, the applicant stated that he had answered all questions truthfully and that his responses to questions such as the date he ceased smoking were based on his ending the habit, rather than giving up consumption of cigarettes totally.  

14. In a written report dated 25 April 2001 (Exhibit A1) Dr E. Cole, Psychiatrist, stated that he had no reason to question the applicant's account of his war service or the drinking habits acquired after he enlisted in the Army.  Dr Cole noted that the applicant's consumption of alcohol increased considerably while he was in Japan and he continued to drink to excess up to mid-1999.  Dr Cole concluded that the applicant's experiences during his war service were stressful and that a reasonable hypothesis could be drawn between his war service and his excessive drinking and smoking.

15. In a written report dated 7 June 2001 (Exhibit A2), Dr J. Hammond, consultant physician at the Melbourne Hypertension Clinic, stated that the applicant reported commencing drinking alcohol during Army service because of boredom, peer group pressure and the ready availability of alcohol, and that he remained a heavy drinker after his discharge from the Army.  In Dr Hammond's opinion the applicant's history of alcohol consumption is of significance in relation to the diagnosis of cardiomyopathy, and the causality of the cardiomyopathy fits within factor 5(b) of the Statement of Principles (SoP) Nº 19 of 1998.
    CONSIDERATION OF THE ISSUES

16. Ms Bornstein, on behalf of the applicant, said that the SoP indicates that the calculation of alcohol contained within alcoholic drinks is to be assessed on the basis of 10 grams of alcohol per standard alcoholic drink. She submitted that the applicant's drinking habits would satisfy the requirement of 250 kilograms of alcohol within a 10-year period as raising a reasonable hypothesis to connect the condition of cardiomyopathy with war service. Ms Bornstein referred to the report from Dr Cole and noted his conclusion that the applicant's drinking increased considerably whilst he was serving in Japan and that Dr Cole believed that the applicant's excessive drinking can be related to his war service. She submitted that the applicant's excessive consumption of alcohol during service and after discharge was war-caused within the meaning of s9 of the Veterans' Entitlements Act1986 (the Act).

17. Ms Bornstein noted that there was no dispute between the parties that the applicant had rendered operational service, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that the disease was a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.  She said that the process of deciding whether the material before the Tribunal raises a reasonable hypothesis is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant. In submitting that the hypothesis was raised, Ms Bornstein relied on the report from Dr Hammond and the reports from Dr B. Wood, dated 30 August 1999 and 5 September 2000, which identified cardiomyopathy and the applicant's use of alcohol after he enlisted in the Army. 

18. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force.  In relation to cardiomyopathy Ms Bornstein submitted that the applicable SoP is Instrument Nº 19 of 1998 which recognises the following factor as raising a reasonable hypothesis to connect that condition to war service:

    . . .

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

19. Under the third step, if an SoP is in force, the Tribunal must then form an 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.  If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.  Ms Bornstein submitted that the hypothesis fits within the template and is reasonable because of the medical evidence and the evidence given by the applicant in relation to risk factor 5(b) of the SoP.

20. The fourth step requires the Tribunal to consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the disease was not war-caused, and at this stage the Tribunal is required to make findings on questions of fact.  Ms Bornstein stated that the written reports from Dr Cole and Dr Hammond were not challenged.  She said that the written and oral evidence from the applicant was consistent in that he maintained at all times that he was a young man from a non-drinking family when he enlisted in the Army in 1945 and that he began to consume alcohol because of peer group pressure, boredom and the ready availability of alcohol at the places in which he served.  Ms Bornstein said that there were no alcohol counselling services or rehabilitation programs available within the armed services at the time and that no attempts were made by military authorities to curb or monitor the drinking habits of service personnel.

21. Ms Bornstein referred the Tribunal to Repatriation Commission v Tuite (1993) 29 ALD 609 in which the Federal Court noted that causation is a question of fact and that the circumstances and incidents of army camp life, including peer group pressure, can be a contributing cause to taking up smoking and that is a consequence of war service. At par 8 the Court stated:

    . . .
    If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

In Critch v Repatriation Commission (1996) 43 ALD 574 the Federal Court referred to Repatriation Commission v Law (1980) 31 ALR 140 in which the Full Court accepted that an inference that smoking was war-caused may be drawn in reliance upon expert medical evidence as to the likelihood of that having occurred in the course of the particular service of the veteran. Merkel J referred to expert medical evidence concerning alcohol consumption. In Repatriation Commission v Stares (1996) 41 ALD 212 the Court stated at p.218:

. . .
It was of course implicit in the evidence of Dr Sime that, as a matter of medical knowledge, operational military service with the infantry in time of war was capable of causing stress-related alcohol consumption such as to set off serious drinking problems in later life.  This does not appear to have been challenged by the respondent, as a general proposition, before the tribunal.

1. Ms Bornstein submitted that the applicant was a credible witness and there was no challenge to the medical evidence and to the proposition that the applicant's drinking problems may be caused by his operational service.  She acknowledged that there was no corroborative evidence because relevant witnesses were either dead or their whereabouts unknown, and that some of the documentary evidence from the relevant period was incomplete or inconclusive.  However she said that the Tribunal should take into account the passage of more than 50 years since the applicant's operational service.  She referred to Re Bridgeman and Repatriation Commission (AAT 12658, 29 January 1998) in which the Tribunal stated at par 41:

   Bearing in mind the intention of the legislation "was aimed as a matter of public policy at assisting claimants to succeed without being subjected to strict or legalistic proof of the hypothesis their cases raise" (refer Lowerson v Repatriation Commission (1994) 33 ALD 385 at 402) we are mindful that the applicant has no onus (s.120(6) and the Commission is required to take account of difficulties associated with a passage of time and availability (or unavailability) of witnesses (s.119(1)(h).   . . .

2. Mr Purcell, on behalf of the respondent, conceded that the applicant consumed at least 250 kg of alcohol (contained within alcoholic drinks) within a 10-year period before the clinical onset of secondary cardiomyopathy, and that he satisfied the criteria in risk factor 5(b) of the SoP for cardiomyopathy.  However he submitted that the applicant's excessive consumption of alcohol was not war-caused and that, accordingly, the applicant's circumstances did not fit in the template for cardiomyopathy and could not satisfy the four steps set out by the Federal Court in Deledio.

3. Mr Purcell stated that the intention of s119 of the Act is to compensate for the absence of witnesses or documents.  He submitted that in this case the Tribunal had access to a large volume of documentary evidence dating from 1951 that gives an insight into the consumption of alcohol by the applicant.  He stated that in Critch the application was by a widow of a veteran, the issue was smoking (not alcohol use), and there was no contemporaneous evidence.  He stated that Tuite was of limited assistance to the Tribunal because it also involved smoking and followed a different path to substance abuse as it involved stress and apprehension due to combat conditions. 

4. Mr Purcell cast doubt on the credibility of the applicant's evidence.  He said that the records, made by various doctors since 1951 about the applicant's alcohol consumption, were more likely to be a correct account of answers given by the applicant at the time than an understatement by the applicant because of his embarrassment at disclosing his actual level of consumption.  Mr Purcell said that for this reason there was no evidence that the applicant was a heavy drinker, and events such as his hospitalisation after contracting hepatitis, a long sea journey to Japan, extended periods of guard and other duty whilst in the Army and events such as his marriage in 1950 and subsequent automotive studies, all lead to an inference that there have been significant periods of reduced alcohol consumption.  Mr Purcell stated that the applicant admitted lying to doctors over many years and, gave inconsistent answers to questions in written questionnaires and in oral evidence.  As a result the Tribunal should not rely on his evidence.

1. On the question of peer group pressure and stress, Mr Purcell stated that the report from Dr Cole consisted largely of a history provided by the applicant himself.  Mr Purcell said that there was no evidence of significant stress, particularly as boredom was mentioned by the applicant as being a cause of his decision to commence drinking, and the fact that World War 2 ended several months after the applicant enlisted in the Army.  Further Mr Purcell said that there was no evidence of peer group pressure at any of the camps or bases where the applicant was stationed, so that the applicant's alcohol consumption was a matter of personal choice.

2. Mr Purcell submitted that, for these reasons, the applicant had control over his alcohol consumption and there was no causal or temporal connection between his drinking and his operational service.

3. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

4. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease as claimed. In this case there was no dispute between the parties and the Tribunal finds that the applicant suffered cardiomyopathy secondary to alcohol consumption. In respect of the first step the Tribunal finds after taking into account all relevant material, including medical reports, that a hypothesis has been raised connecting the disease with the circumstances of the particular service rendered by the applicant.

5. In respect of the second step, there was no dispute between the parties and the Tribunal finds that SoP Nº 19 of 1998 determined by the Repatriation Medical Authority under subsection 196B(2) or (11) of the Act is in force.

6. In respect of the third step, there was no dispute between the parties that, having regard to the history of alcohol use recorded in service medical documents and medical files, the applicant consumed at least 250kg of alcohol (contained within alcoholic drinks) within a 10-year period before the clinical onset of secondary cardiomyopathy and the Tribunal finds that he satisfies the criteria in risk factor 5(b) of the SoP.  Therefore the hypothesis identified in the first step is consistent with the template to be found in the SoP and is a reasonable one. 

7. In respect of the fourth step concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal finds that the applicant was a non-drinker when he enlisted in the armed services.  The Tribunal accepts that there were some inconsistencies in the evidence given by him concerning the amount and frequency of his consumption of alcohol.  However the Tribunal takes into account the passage of time and the provisions of s119(1)(h) of the Act in relation to the applicant's recollection of some of the events that occurred during his service with the Army and following his discharge.

8. In general terms the Tribunal finds the applicant to be a credible witness and accepts his evidence that he commenced to drink when he joined the Army because of peer group pressure, the ready availability of alcohol and boredom, and he consumed the equivalent of about three or four bottles of beer each day.  This pattern continued when he served in Japan and after he was discharged, although he understated his consumption of alcohol when describing his drinking habits to various doctors.  The Tribunal also accepts the medical evidence of Dr Cole and Dr Wood that despite many periods of boredom there were also periods of considerable stress, particularly in Japan.  The excessive consumption of alcohol can be related to his service with the armed forces.

9. For these reasons the Tribunal is not satisfied beyond reasonable doubt that the disease was not war-caused as set out in s9 of the Act or that the hypothesis cannot be sustained.
   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision that the secondary cardiomyopathy suffered by the applicant is war-caused with effect from 26 August 1999. 

    I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision herein of
    G.D.Friedman, Member

    (sgd)       Catherine Thomas
                  Clerk

    Date of hearing:  5 September 2001, 10 October 2001
    Date of decision:  23 October 2001
    Counsel for applicant:                 Ms J.Bornstein
    Solicitor for applicant:                  Williams, Winter & Higgs
    Counsel for respondent:              Mr G.Purcell
    Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs