Martin and Repatriation Commission
[2004] AATA 822
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 822
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/190
VETERANS' APPEALS DIVISION ) Re JOAN MARTIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date6 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – veteran died from heart condition – three hypotheses raised – (i) war caused smoking led to emphysema – (ii) war caused alcohol dependence/abuse after experiencing a severe stressor leading to hypertension – (iii) war caused anxiety disorder or post traumatic stress disorder after suffering a severe stressor contributed to hypertension – hypothesis raised are not reasonable – no evidence of clinical onset of psychiatric condition – no evidence of veteran’s drinking and smoking habits before his service - decision affirmed
Veterans’ Entitlements Act 1986 s 5, 6, 8, 13, 14, 119, 120, 120A
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Bey (1997) 79 FCR 364
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
6 August 2004 Mr I R Way, Member 1. This is an application by Joan Martin for review of a decision of the Repatriation Commission dated 15 November 1999, which determined that the death of the applicant’s husband, Francis Martin (the veteran) was not war caused. The Commission’s decision was affirmed by the Veterans’ Review Board (VRB) on 30 January 2002.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1 Statement of Joan Martin dated 14 April 2002
§Exhibit A2 Report of Dr Edwin Young dated 7 July 2003
§Exhibit A3 Additional Supplementary Statement of Joan Martin dated 25 September 2003
§Exhibit A4 Report of Dr Edwin Young dated 18 March 2004
§Exhibit R1 Transcript of VRB dated 30 January 2002
§Exhibit R2 Supplementary Statement of Joan Martin, 23 May 2003
3. The applicant was represented by Mr A Harding of Counsel, instructed by Gilshenan and Luton and the respondent was represented by Mr M Smith, Departmental Advocate. The applicant gave oral evidence and Dr ES Young, Psychiatrist, gave evidence by telephone.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (the Act), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11) may make a claim for a pension under section 14.
5. The applicant is the widow of a veteran who rendered operational service as defined in sections 5(b) and 6(a) of the Act, namely, continuous full-time service outside Australia during World War I.
6. The veteran rendered operational service in the Australian Army during World War I from 31 August 1915 to 4 April 1917.
7. The veteran had no service related disabilities and his non-service related disability is death, the subject of this review.
8. The veteran was born on 15 August 1883 and died on 20 May 1958, aged 74. The cause of death shown on extracts from the veteran’s death certificate is:
“1(a) congestive cardiac failure (years)
(b) hypertension (years)
2(a) emphysema (years)
(b) Seminoma right testis (months)”
9.The applicant has raised three hypotheses.
10. The first hypothesis is that the veteran developed a smoking habit during his World War I service which led to his suffering emphysema, this condition contributing to his death.
11. The second hypothesis is that the veteran developed alcohol dependence or alcohol abuse as a result of experiencing a severe stressor during World War I and/or as a result of suffering from a war caused psychiatric disorder and that the applicant’s alcohol consumption contributed to his hypertension, which in turn, contributed to his death.
12. The third hypothesis is that the veteran suffered from war caused anxiety disorder or post traumatic stress disorder (PTSD) as a result of experiencing a severe stressor during World War I which in turn contributed to his hypertension and ultimately his death.
Legislative Framework
13. The question whether the death of each veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused”, the relevant part of section 8 provides:
“War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly, the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.”
14.Section 120 describes the relevant standard of proof:
“Standard of proof
(1)Where a claim under Part II for a pension 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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or defence-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
15.Other relevant provisions of the Act in respect of the claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
16. Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SOP).
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
17. Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.
18. Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
19. The RMA has determined SoPs in respect of emphysema, hypertension, alcohol dependence or alcohol abuse, anxiety disorder and PTSD and it is common ground, and the Tribunal accepts, that the following SoPs are relevant:
§ Instrument No 73 of 1997 – Chronic Bronchitis and Emphysema
§ Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
§ Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004) – Hypertension
§ Instrument No 1 of 2000 – Anxiety Disorder
§ Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) – PTSD
20. The diagnostic criteria for generalised anxiety disorder, as set out in DSM:IV, are consistent with the criteria set out in Instrument No 1 of 2000 and it is appropriate that those criteria be set out in these reasons for decision. They are as follows:
“Diagnostic criteria for 300.02 Generalized Anxiety Disorder
A.Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B.the person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). Note: Only one item is required in children.
(1)restlessness or feeling keyed up or on edge
(2)being easily fatigued
(3)difficulty concentrating or mind going blank
(4)irritability
(5)muscle tension
(6) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
D.The focus of the anxiety and worry is not confined to features of an Axis I disorder, eg, the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relative (as in Separation Anxiety Disorder), gaining weight (as in anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Post Traumatic Stress Disorder.
E.The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F.The disturbance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition (eg hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Development disorder.”
Applicant’s Evidence
21. The applicant was born on 31 October 1918 and first met the veteran in 1937 when she was 18 years old and he was 53 years old. They were married some seven years later on 13 June 1944. She said she had no direct knowledge of the veteran prior to meeting him in 1937 and that the anecdotal information she had about him prior to her meeting him in 1937 was gleaned from discussions she had with one the veteran’s sisters, the veteran’s brothers and children from his first marriage and some conversations she had with the veteran himself.
22. In respect of the veteran’s pre-war and war time experiences, the applicant said the veteran never made any direct statements to her about when he began to drink or when he began to smoke. She said he spoke of looking forward to the rum and cigarette issues which were brought up by camel when he was in Egypt. She also said that she presumed that he could not have been drinking before the war because he was in a very well respected business at Cootamundra and that he had come from a very strict Church of England family where drinking would not have been tolerated.
23. However, Mrs Martin clearly stated that she could not truthfully say whether or not the veteran drank and/or smoked before the war. Nor could she say whether or not the veteran commenced smoking and/or drinking during the war.
24. It was the applicant’s evidence that the veteran had five brothers and that in conversation some of them indicated that after leaving home and joining the service they enjoyed the freedom from all of the restrictions of home life and the applicant inferred that such circumstances strengthened her belief that her husband did not drink or smoke until he joined the service, or if he did it must have been only in a light fashion.
25. The Tribunal notes that the veteran left home at 18 years of age (it would seem, to escape family opposition to his seeing a young catholic lady). He went to South Australia and then to northern New South Wales working as a Stock and Station Agent at which time he married his first wife and had children prior to joining the Army in 1915, some fourteen years after he left home.
26. In respect of stressful war time experiences suffered by the veteran, the applicant said that as a machine gunner with the Light Horse in Egypt she thought her husband would have experienced considerable stress and she recounted her husband telling her of seeing one of his mates shot in the head by an enemy bullet that exploded and a horse being shot in the heat of battle.
27. Insofar as the period between the veteran’s discharge from the Army in 1917 and when she first met him in 1937, the applicant was not able to tell the Tribunal about his drinking, smoking or behaviour other than that he had been employed by the Government (from 1920 to 1950) and he was seen to be very good at his work and was well liked. She said that she first met the veteran at her Grandmother’s flat in Cairns and that her Grandmother described the veteran as a lonely sad man who drank a lot; and that her Grandmother thought the applicant could look after him.
28. With regard to circumstances during their marriage the applicant said that:
§the veteran was drinking and smoking when she first met him;
§he chained smoked heavily consuming more than two ounces of tobacco per week when first met him, increasing to four ounces per week later;
§in addition to drinking daily he would on occasion binge drink, usually with Army friends from World War I at which time he would become quite maudlin;
§the veteran gave up drinking a little after 1950;
§the veteran always suffered from headaches and that by about 1949 his emphysema was so bad he could not breath and that he had always had a smoker’s cough;
§after a disagreement with his son, his son told him not to react in a silly way that might affect his blood pressure but she agreed this was not said in any medical context and that the first medical mention of hypertension was in 1957. The Tribunal notes this is at variance with the applicant telling the VRB that the first medical comment about his blood pressure was in 1948;
§in respect of his emotional state:
“7.He would sleep fitfully through the night getting up at all times of the night to go out for a smoke and a cup of tea before returning to bed.
8.I remember quite well that if something upset Frank and it would not sometimes take much to upset him, he would smoulder for days about the issue.
9.I also noted that he seemed to worry unduly about the children.
10.If they were playing near the house he was always concerned that they would do some harm to themselves.
11.He also did not like very much noise.
12.When the garbage men were coming to collect our garbage he would make sure the dog was locked up so that he would not bark at the garbage man and then thus upset Frank.
13.Frank had very little to do with anyone outside the house except his army mates who would come to the house from time to time.
14.Frank had something that concerned him about water so much so that he was always concerned that he would slip over in the shower or would fall in the bath tub when he would hop into the bath tub for a bath.
…
16.There were times when he would not talk to me for days on end.
17.He was always polite and made it quite clear that he would not speak to me at all.
18.On these occasions he used the children as a go between in giving me messages what he wanted to talk to me about.
…
21.During the twelve months before he passed away, he withdrew into a shell and had very little to do with anyone.
22.Also, Frank would panic over the smallest things that were not of a type to be concerned about.
23.He was quite obsessional about time ie if we had to go anywhere he had to be there on the dot, not before and not after.
24.If I was home late from shopping or just going out generally, then he would voice his concern and worry about where I was or what I was doing.
25.It would seem that he would continue to worry about that aspect even though we gave him reasonable explanations of where I was.
26.He seemed at times restless, keyed up, and on edge about things generally.
...
33.I also noted as the older Frank got, he became anxious more easily.
34.There were times when there was no doubt that Frank was quite down as he was quite concerned and his whole manner indicated to us that he was worried and concerned about something and he was quite down in the mouth.
…
44.I would describe Frank as being a quiet gentlemanly person who would go into his shell quite easily if things upset him which they tended to do when you least expected it.”
Medical Evidence
29. Dr ES Young, Psychiatrist, provided two written reports (Exhibit A2 and Exhibit A4).
30. In his report of 7 July 2003, Dr Young expressed the opinion that while there were inconsistencies in the applicant’s evidence about the extent of her husband’s drinking, her latest account (which is the same as she gave to the Tribunal) is consistent with alcohol abuse. In addressing the question about indicators that the veteran’s alcohol dependence or abuse may have been contributed to by stress during World War I, Dr Young stated:
“Mrs Martin has stated that her husband was not a drinker before World War I, that he was a drinker when she met him in 1937 and that her daughter had told her that he was a drinker at least by 1926. She also told me that he used to drink to excess when with old Army mates and when he was ruminating about stressful war service events such as seeing a close friend’s head being shot off.”
31. In his oral evidence Dr Young accepted that it was not possible to say when the veteran’s alcohol problems had a clinical onset and apart from a daughter’s recollection of the veteran drinking in 1926 when his first wife died, there was no evidence of the veteran’s drinking habit before the war or during the period after the war and prior to the applicant meeting him in 1937. Dr Young accepted that there could have been non-war related stressors or other reasons for the veteran abusing alcohol.
32. In his report of 18 March 2004, Dr Young highlighted the difficulties in making a definitive diagnosis of the condition of a deceased person without the benefit of any consultation (or notes/reports of any consultation) with the deceased. Nevertheless, based on the applicant’s recounting of the behaviour of the veteran, Dr Young opined that there is a reasonable probability that the veteran suffered from generalised anxiety disorder. However, he said that the clinical onset of any such condition was just unknown. He also expressed the view that there were insufficient indicia to support a diagnosis of PTSD or depression.
33. When taken to the DSM:IV diagnostic criteria for generalised anxiety disorder, Dr Young said that while he had an impression of the veteran being a chronic worrier, he could not answer the question as to whether the veteran met criterion A. Nor could he say whether the applicant met criterion B, this being a subjective matter. Likewise Dr Young was not able to form a clear view about whether the veteran met criterion E although there was apparently trouble at home and the veteran apparently did not engage in a lot of social activity. In answer to questions from Mr Smith, Dr Young agreed that only two of the six symptoms in criterion C were evident in this case.
34. In summary, Dr Young was of the view that the veteran’s behaviour, taken over all, was more extreme than would usually be expected and as such there was a reasonable hypothesis that the veteran suffered from anxiety disorder because of his war service.
Consideration
35. There is no dispute between the parties and the Tribunal accepts that the applicant’s husband was a veteran, that the applicant was the veteran’s widow and that the veteran died in 1958.
36. In order to ascertain whether a SoP applies it is necessary to determine, on balance of probabilities, the kind of death suffered by the veteran (see Repatriation Commission v Hancock [2003] FCA 711 at paragraph 9).
37. In this case the Tribunal is satisfied that the veteran’s death was caused by heart failure due to poorly controlled hypertension; and that emphysema contributed to his death.
38. With respect to clinical onset of these two conditions there is very limited relevant evidence.
39. The applicant, in her oral evidence, said that the first medical reference to the veteran suffering hypertension was in 1957 and the death certificate states that the veteran had hypertension for years prior to his death in 1958. The available records of sick leave, up to 1945 do not refer to hypertension and the applicant’s oral evidence about the veteran having an argument with his son in 1948 and being told by his son not to be silly or it would affect his blood pressure, has no medical significance. The Tribunal notes the applicant told the VRB that she had taken her husband to a doctor in about 1948 and that this was when he was first told about high blood pressure. On the available evidence the Tribunal is satisfied that symptoms of hypertension were present in 1948, such that a doctor could say that the disease was present and that the clinical onset of the veteran’s hypertension was in 1948.
40. In respect of emphysema, the applicant’s evidence was that this condition was first diagnosable in about 1950. The Tribunal notes the veteran’s sick leave records up to 1945 make no mention on emphysema and that the death certificate records the condition being in existence for years at the time of the veteran’s death in 1958. On the available evidence the Tribunal is satisfied that the veteran’s emphysema had a clinical onset in 1950.
41. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 s196B(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 an 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 s196B(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 s120(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.”
42. After careful consideration of all of the material before it, the Tribunal is of the view that this material points to the following hypotheses connecting the veteran’s death with his relevant service:
§the veteran had a smoking habit which caused him to suffer from emphysema;
§the veteran had a drinking habit which caused him to suffer from hypertension;
§the veteran had an anxiety disorder which caused him to suffer from hypertension.
43. The Tribunal does not accept that the material before it points to a hypothesis that the veteran suffered from PTSD or that he suffered from depression, connected with his relevant service.
44. As has already been indicated the Tribunal accepts that there are in force, relevant SoPs for the conditions mentioned in the above three hypotheses; and as set out in paragraph 19 above.
45. Turning first to the question of emphysema. The Tribunal has already found that the veteran suffered from emphysema with a clinical onset in 1950.
46. The factor in Instrument No 73 of 1997 relied upon by the applicant is Factor 5(b) namely:
“Smoking at least ten pack years of cigarettes or the equivalent in other tobacco products, before the clinical onset of … emphysema.”
The Tribunal is mindful that there must be a causal connection between the veteran’s smoking and his operational service, as required by the SoP.
47. The applicant’s evidence is that the applicant was a heavy smoker when she first met him and that he smoked two to four ounces of tobacco a week. At the higher level of four ounces per week it would take some eleven to twelve years to smoke ten pack years of cigarettes. The Tribunal accepts the applicant’s evidence that the veteran probably smoked during World War I and subsequently. Given her direct knowledge of his level of smoking the Tribunal accepts that the veteran meets Factor 5(b) of the relevant SoP in respect of the quantum of smoking and the question that then arises is whether there is a causal connection between his smoking and his relevant service. There must be a causal connection for the applicant’s claim to succeed. This issue is addressed later in these reasons for decision.
48. With respect to hypertension, the applicant relies on the veteran’s satisfying Factor 5(b), causally connected to his relevant service, namely:
“Consuming an average of at least 200 grams of alcohol per week for a continuous period of at least 6 months immediately before the clinical onset of hypertension which cannot be decreased to less than an average of 200 grams per week of alcohol.”
And/or Factor 5(n), namely:
“Suffering from a clinically significant anxiety disorder for the six months before the clinical onset of hypertension.”
49. The Tribunal has already determined that the veteran’s hypertension had a clinical onset in 1948 and the Tribunal is mindful that it was the applicant’s evidence that the veteran ceased drinking in 1950 and that prior to this the veteran drank alcohol daily (whiskey and rum) and would binge drink about once a month. She described her husband as an alcoholic and that she had been told he was a heavy drinker in 1926. The Tribunal notes the inconsistencies in the applicant’s account of her husband’s drinking habit and accepts her explanation that she was originally ashamed to acknowledge that her husband was a drinker. While there is a lack of quantification of the veteran’s alcohol consumption, nevertheless, the Tribunal agrees with the VRB that the evidence does meet Factor 5(b) in respect of the level and period of consumption. Again, as is the case with the veteran’s smoking habit, a crucial issue is whether there is a causal connection between his drinking and his relevant service and this is addressed later.
50. In order to address the issue of whether the veteran meets Factor 5(n) of Instrument No 35 of 2003 (clinically significant anxiety disorder), the Tribunal must look to Instrument 1 of 2000. The RMA has made it clear that if a relevant factor applies and that factor includes a disease in respect of which there is a SoP, then the factors in that last mentioned SoP apply.
51. The factor in Instrument No 1 of 2000 relied upon by the applicant is Factor 5(a)(ii) namely:
“Experiencing a severe psycho-social stressor within the two years immediately before the clinical onset of anxiety disorder.”
52. It is common ground between the parties and the Tribunal accepts that the veteran did experience a severe psycho-social stressor during his World War I service in the Middle East, within the meaning of that term as defined in the relevant SoP.
53. The question then is whether the veteran suffered from anxiety disorder and if so when was the clinical onset of this disorder. Dr Young is of the opinion that the veteran did suffer from Generalised Anxiety Disorder (GAD). However, he was unable to offer any opinion about the time of the clinical onset of the disease. The Tribunal is mindful that it is not, at this stage, finding facts. However, the Tribunal notes that Dr Young, in putting forward there was a reasonable hypotheses that the veteran suffered from war-caused GAD, was not able to say that the veteran satisfied the criteria for GAD as set out in DSM:IV. This matter is addressed by the Tribunal at a later stage.
54. In Repatriation Commission v Bey (1997) 79 FCR 364, the Federal Court made the point that while section 119 of the Act requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter or circumstance, the material before the Tribunal either points to the fact being considered or it does not and if it does not, the deficiency cannot be remedied by resort to a procedural provision such as section 119.
55. In this case there is no material before the Tribunal which points to the veteran having a clinical onset of anxiety disorder within the two years after his World War I service and any suggestion of such an onset is pure speculation and the Tribunal is of the view that Factor 5(a)(ii) of the relevant SoP is not met and therefore the hypothesis put forward by the applicant in respect of the veteran’s anxiety disorder is not a reasonable hypothesis and this part of the applicant’s claim must therefore fail.
56. For the sake of completeness the Tribunal has considered whether it could be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining the veteran suffered from war-caused anxiety disorder, had the Tribunal accepted that the hypothesis put forward by the applicant was reasonable.
57. Clearly the claim cannot succeed if one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, this disproving beyond reasonable doubt the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 564).
58. While Dr Young formed an opinion that, looked at in total, the veteran suffered from GAD, when taken to the DSM:IV criteria that must be satisfied for there to be a diagnosis of GAD, he could not determine that the veteran met criterion A, criterion B, the required number of symptoms in criterion C, or criterion E of criteria A to F as set out above. Unless all of the required DSM:IV criteria are met (and these are materially the same as those set out in the relevant SoP) it cannot be said, consistent with the medical scientific standard prescribed by the SoP that generalised anxiety disorder was present. The Tribunal is satisfied, beyond reasonable doubt that in this matter the veteran did not suffer from anxiety disorder.
59. This then leaves the crucial question as to whether the Tribunal accepts that the veteran’s smoking habit and/or his drinking habit were causally connected to his service. If either one or both of these habits is so connected, then the Tribunal, would not be satisfied, beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death was war-caused.
60. Mr Harding submitted that the Tribunal should accept that the veteran had a strict family upbringing where smoking and drinking were not tolerated and that as evidenced by the applicant in respect of the veteran’s brothers when they left the family environment and joined the Army they enjoyed the ensuing freedom and change in lifestyle and began drinking and smoking. The Tribunal has difficulty in accepting this as evidence that the veteran did not smoke or drink before joining the Army. The Tribunal does not accept that there is a parallel with his brothers’ circumstances as the veteran left his home in Melbourne when he was 18 and then lived and worked in South Australia and New South Wales as a Stock and Station Agent, got married and had two children by the time he joined the Army at age 32. While the Tribunal would not put it as high as Mr Smith did when he submitted that it was rampant speculation that the veteran did not smoke or drink before joining the Army, nevertheless, the Tribunal is of the view that there is no material, other than speculation, which would support any such contention. The evidence that the veteran looked forward to rum and cigarette rations coming forward by camel when he was in the desert does no more than support the view that the veteran smoked and drank while in the Middle East. There is no evidence about the quantities of alcohol consumed by the veteran or the extent of the veteran’s smoking habit during World War I or the circumstances of service relating to any such habits. The same lack of evidence applies to the veteran’s habits in the ten years or so post World War I.
61. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is of the view that the material before it which purports to raise the connection between the veteran’s war service and his smoking habit and his alcohol abuse is speculative and tenuous, so much so, that the Tribunal is satisfied, beyond reasonable doubt that it does not point to or support the contended hypothesis and leaves the hypothesis open as a mere possibility. As such the Tribunal finds that the hypotheses put forward by the applicant which connect the veteran’s alcohol dependence or alcohol abuse and his smoking habit with his World War I service are not reasonable hypotheses (see Repatriation Commission v Bey (1997) (supra) at 372 and 373).
62. It follows from the above findings and reasons for findings that the Tribunal finds that the applicant has not raised a reasonable hypothesis connecting the veteran’s death with his war service and the Tribunal therefore affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: .....................................................................................
AssociateDate of Hearing 28 June 2004
Date of Decision 6 August 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr M Smith, Departmental Advocate
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