Miller and Repatriation Commission - [2000] AATA 1083

DECISION AND REASONS FOR DECISION [2000] AATA 1083

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/507

VETERANS' APPEALS DIVISION       )
           Re      GLADYS THELMA MILLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date8 December 2000
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  .     (Sgd) K L Beddoe.
  Senior Member
CATCHWORDS
VETERANS' AFFFAIRS - war widow's pension - whether a reasonable hypothesis arose connecting the veteran's service with his alcohol abuse and his alcohol abuse with his death

Veterans' Entitlements Act 1986 ss 8, 120
Statement of Principles, Instrument No 5 of 1994

REASONS FOR DECISION

8 December 2000 Mr K L Beddoe (Senior Member)

The applicant seeks review of a decision of the respondent of 24 July 1997, which found that the death of her veteran husband, Thomas Ronald Miller, was not war caused within the meaning of the Veterans' Entitlements Act 1986 (the Act). The Veteran's Review Board affirmed the decision of the Repatriation Commission on 14 April 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and a number of exhibits tendered by the applicant and the respondent. Mr Harding of Counsel, as instructed by Gilshenan and Luton, represented the applicant. Mr Harding called the applicant as a witness. Mr Loftus represented the Commission.
The veteran's operational service was in the Royal Australian Air Force during World War 2 from 22 May 1942 to 18 February 1944. The veteran passed away on 4 November 1975. The certified cause of his death was (a) haematemesis and malaena; (b) oesophageal varices; (c) hepatitis of unknown etiology.
The applicant contends that the death of the late veteran was war caused within the meaning of section 8(1)(e) of the Act. In support of this contention the applicant put forward the hypothesis that the veteran suffered stress during his operational service, which led to his abuse of alcohol, which caused the disease alcoholic hepatitis, which caused the veteran's death. The stressful events that the applicant contends the veteran underwent during service are his being the sole survivor of a plane crash, and suffering epileptic fits during service. The applicant contends these stressful events fall within factor 1(c) of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument No 5 of 1994.
In her evidence in chief the applicant said that her late veteran husband had epilepsy from the time of his service and that his attitude toward the condition was one of utter disgust; it worried him and he felt denigrated. The applicant also said that her husband did not talk of the condition outside the family and to be sure that the condition did not affect their children they waited eight years before having their first child. When asked how frequent the veteran's epileptic attacks were the applicant said they were spasmodic, ranging from once a month to once every three months. The applicant further stated that the attacks troubled her husband and when he was drunk and depressed he would say, "why did it happen to me?" When asked to what the veteran was referring the applicant said that it was mostly the epilepsy but also the plane crash he had been involved in. The predominant factor though was the epilepsy. The applicant said that she had witnessed a number of her husband' s epileptic fits; he would convulse and thrash around on the floor for a short period of time. She said that she liked to be present during a fit to make sure her husband did not harm himself by bumping into furniture, etc.
When asked whether the veteran, in his post service occupation of air traffic controller, had a fear of fits, the applicant said that he did, especially when he was working in Townsville, where he was the only person in the tower. The applicant said her husband drank to excess after his service, which had an exaggerated effect when mixed with the tablets he took for his epilepsy. The applicant attributed her husband's consumption of alcohol to his service. When asked if the veteran had told her when he started drinking the applicant stated he had said he started in England, where the alcohol and cigarettes were free in the Sergeant's mess.
During cross-examination the applicant was asked about the plane crash that the veteran had mentioned to her. She said that he had told her the plane had crashed on English soil on the way back from a bombing raid and he was the sole survivor. When asked if the veteran had told her anything else of his service in England, she said he hadn't told her much as he was a very private person. When questioned about the veteran's alcohol consumption the applicant said that he mainly drank beer rather than spirits, as he knew it was not good to mix alcohol with the tablets he took for his epilepsy. When asked if the veteran drank heavily in 1945 the applicant said he did not, he drank socially and would have a couple of beers at home after work. The applicant said that her husband's heavy drinking started when he became aware he would have epilepsy for life.
Mr Harding, in his submissions, addressed the requirements of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument No 5 of 1994, in particular factor 1(c). The relevant parts of the Instrument are set out below:
"1.       Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are:
…
(c)       experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
…
2.        Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person.
3.        The factors set out in paragraphs 1(c) to 1(e) apply only where:
(a)       the person's psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)       the relationship suggested between the psychoactive substance abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4.        For the purposes of this Statement of Principles:
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)       continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)       recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
The stressful event required under factor 1(c) of the Instrument is said to be satisfied by the plane crash that the veteran survived and the epileptic fits he suffered during his service. Mr Harding submits that any plane crash would meet the definition of a stressful event under the Instrument. With regard to the veteran's epileptic fits Mr Harding referred to two such incidents. One caused the veteran to black out in Victoria in January 1943 and in May 1943 the veteran was hospitalised after having a fit. Mr Harding submits that both fits, which caused sudden loss of consciousness without warning, must have been very stressful to suffer, particularly in view of the fact that the veteran was first diagnosed with epilepsy during his service and also because of the stigma attached to the condition. How this worked on the veteran's mind, coupled with suffering the fits, Mr Harding submits, fits the definition of a stressful event in Instrument No 5 of 1994.
In regard the requirement in the Instrument that a veteran suffer from psychoactive substance abuse or dependence as defined Mr Harding submits that there are a number of reports in the T Documents that point to the veteran being an alcoholic. The maladaptive pattern of use of alcohol, Mr Harding submits, is manifest in the fact that the veteran knew he should not mix alcohol with his medication for epilepsy, and that his drinking jeopardised his employment. This satisfies part (a) of the definition. Part (b) is satisfied by the fact that it was physically hazardous to mix alcohol with the veteran's epilepsy medication. Mr Harding submits that the Instrument is therefore satisfied and the veteran's drinking can be said to be war-caused within the meaning of the Act. As such, Mr Harding submits, the veteran's death is linked to his service as his drinking caused the condition of alcoholic hepatitis and hepatitis is one of the recorded causes of death.
Mr Loftus stated during his submissions that there was no issue concerning the veteran's alcoholism. What the Commission took issue with was the stressful event required under the Instrument. Although the veteran's epilepsy had been accepted as a war-caused disability it was idiopathic; the mere fact that it arose during service does not mean it is a war-caused disease. Mr Loftus submits that the veteran's idiopathic epilepsy cannot be classified as a form of external stimuli and therefore the hypothesis put forward by the applicant on this basis cannot be made out. The only other possible stressful event, Mr Loftus submits, is the plane crash that the applicant said her husband told her about. However, there is no record of such plane crash taking place and the documentary evidence should be preferred to the evidence of the applicant.
In his submissions in reply Mr Harding stated that the respondent was putting much too strict a reading on the external stimuli element of the stressful event requirement of the Instrument. He submits that the definition can be broadly enough read to cover an event such as an epileptic fit occurring on service. Such fits manifested themselves outside when the veteran hit his head. I asked Mr Harding if he had any previous decisions that supported his submissions on this issue. He said that he did not and I granted leave to advise of any such decisions within seven days. No decisions were received.
The standard of proof in determining whether a reasonable hypothesis has been made out connecting a veteran's death with eligible service is set out in subsections 120(1) and 120(3) of the Act. These sections are set out below:
"120 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.
Note:    This subsection is affected by section 120A.
…
(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.
Note:    This subsection is affected by section 120A."
Subsections 120A(1) and 120A(3) make it necessary, for a claim made on or after 1 June 1994 relating to a veteran's eligible service, to consider any hypothesis connecting a veteran's service with their death against any relevant Statement of Principles in existence.
The hypothesis put forward by the applicant involving the plane crash cannot be upheld. There is no record of such a crash taking place in the veteran's service records and in a Psychiatric Case Summary contained in the supplementary T Documents (Exhibit A) the veteran's service history records "No illnesses. No accidents." The documentary evidence must be accepted over the hearsay evidence of the applicant and the Tribunal is therefore satisfied beyond a reasonable doubt that there are not sufficient grounds for upholding this hypothesis.
The hypothesis put forward by the applicant involving the epileptic fits on service also cannot be upheld. The condition of epilepsy has been accepted as war- caused but it is an endogenous condition that manifested itself during the veteran's service. The manifestation of an endogenous condition cannot be described as a stressful event as defined because there are no external stimuli and is therefore not related to the war service rendered by the veteran. Therefore the connection between the veteran's service and his drinking is too tenuous to uphold this alternative hypothesis.
Accordingly, the decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  16 November 2000
Date of Decision  8 December 2000
Applicant  Mr A Harding, Counsel
Respondent  Mr R Loftus, Departmental Advocate