Mychael and Repatriation Commission

[2002] AATA 517

DECISION AND REASONS FOR DECISION [2002] AATA 517

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1202

VETERANS' APPEALS DIVISION        )          
           Re      SYLVIA MYCHAEL           
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M D Allen, Senior Member  Dr J Campbell, Member         
Date              27 June 2002 

PlaceSydney

Decision      The decision under review is affirmed.   

(Sgd)         M D Allen

….………………….
 Presiding Member

CATCHWORDS
VETERANS' ENTITLEMENTS: Whether deceased's alcohol habituation caused or contributed to by operational service. Failure of material before Tribunal to raise a reasonable hypothesis.

Veterans' Entitlements Act 1986 - ss 120(1), (3), (6); s 120A

Repatriation Commission v Gorton [2001] FCA 1194

REASONS FOR DECISION

Mr M D Allen, Senior Member Dr J Campbell, Member           

1. By Application made the 8th day of August 2000 the Applicant sought review of a decision by the Respondent on 12 August 1998 as affirmed by a Veterans' Review Board on 9 June 2000 that the death of her late husband Vernon Archibald Mychael was not war-caused.

2. The late veteran had operational service as that term is defined in s 6D of the Veterans' Entitlement Act 1986 (the VEA) for the following periods namely:

   13 July 1953 to 17 October 1954 in Singapore.
   2 June 1962 to 1 May 1963 in Malaya and Thailand.

1. The deceased died on 13 August 1997, the certified cause of death being hypertensive heart disease.

2. As the deceased had operational service, the standard of proof in this matter is that prescribed by subsections 120(1) and (3) of the VEA. Those subsections provide that the death of the deceased was war-caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied if after consideration of the whole of material before it, that material does not raise a reasonable hypotheses connecting the death of the deceased with the circumstances of the particular service rendered by him. Subsection 120A(3) VEA then goes on to provide that a hypothesis will not be reasonable unless it conforms to the so-called Statement of Principles (SoPs) determined by the Repatriation Medical Authority. Subsection 120(6) VEA provides that no onus of proof lays upon either party to this review.

3. Two hypotheses were advanced by the Applicant seeking to link the deceased's death with his operational service. The first hypothesis was that the deceased became alcohol dependent as a result of his service and this in turn led to hypertensive heart disease. The second hypothesis is that the deceased developed a habituation to alcohol because of operational service, which led to obesity which in turn contributed to a worsening of his hypertensive heart disease.

4. It was agreed by both parties to the review that the SoPs re hypertension and psychoactive substance abuse in force at the time the Respondent made its initial decision in this matter, being Instruments No 83 of 1995 and No 5 of 1994 respectively, were more favourable to the Applicant than the SoPs currently in force. Consequently, having regard to the decision of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194, it is to those earlier instruments that the Tribunal has had regard in determining this matter.

5. The relevant factors for hypertension in Instrument No 83 of 1995 which are applicable to the late Mr Mychael are:

   5(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
   (v) suffering from persistent obesity which developed before and continued at least until the clinical worsening of hypertension.

Whereas in Instrument No 5 of 1994 the factor relied upon to raise the reasonable hypothesis is factor 5(b) which reads:

"Experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse."

The term "experiencing a severe stressor" is defined in the said instrument as follows:

"Experiencing a severe stressor means, the person experienced, witnessed or was confronted with, event or events that involved actual treat of death or serious injury, or a treat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror."

1. Exhibit A9 is the report of Dr Miller consultant physician dated 7 December 2001. In the penultimate paragraph of his report Dr Miller sums up the first hypothesis contended for by the Applicant. He states:

   "I consider that Mr Mychael's alcohol dependence contributed to the hypertension that was a major factor contributing to the fatal arrhythmia. If it is determined that his alcohol dependence was contributed to by his war service, then I consider that Mr Mychael's death was war-caused."

2. The alternative hypothesis relied upon by the Applicant finds support in Dr Miller's report where in answer to question 5 asked of him, he states:

   "There is no doubt that Mr Mychael's alcohol dependence exposed him to an environment which encourages caloric intake that was excessive for his needs and he had gained 21.8 kg over his baseline weight of 79.8 kg. This is a gain of 21.45 % so that he satisfies factor (a) of the Repatriation Authority's statement about the causes of being obese."

1. Having reviewed the documents in this matter including the deceased's service medical records and especially the report of Dr Lee cardiologist to the deceased's General Practitioner dated 31 January 1996 Dr Miller stated:

   "There is insufficient evidence to state that Mr Mychael was drinking 200g of alcohol at the time of the diagnosis of his hypertension during his service on 23th August 1965. However, in my opinion, Mr Mychael's drinking satisfies Factor 5(o) of the Statements of Principles for Hypertension, Instrument Number 31 of 2001 as he was drinking considerably more than 200g per week of alcohol (contained within alcoholic drinks), at the time of the clinical worsening of hypertension. This, according to Dr Lee would have been in 1986 when treatment was started for his hypertension."

1. As we understand Dr Miller's evidence he stated that the deceased's hypertension became clinically worse in 1996 as his blood pressure reading was then 140/80, which is hypertensive, although the deceased had been on anti-hypertensive drugs namely Renitec, and previously Inderil, for ten years. There is evidence from the Applicant that the deceased was at this time a heavy drinker.

2. In evidence Dr Miller stated that the blood pressure readings of the deceased while still in RAAF were consistent with a mild hypertension. Blood pressure readings are often labile (fluctuating) in patients who drink alcohol. Also people who drink large quantities of alcohol put on weight.

3. The Applicant gave evidence that she met the deceased when he had returned from his first period of operational service, which was in Singapore. It was just prior to or just after Christmas 1954. At that time she also was in the RAAF. When she and her husband first started to associate she formed the opinion that he was an established drinker. In Exhibit A2 she said:

   "On other visits to each other during our dating period, we would go drinking together at the RAAF bases and hotels. We would drink until we were tipsy. It only took me two beers to become tipsy, but my husband would drink more - usually between 6-10 beers."

Later her mother in-law told her that before he joined the RAAF the deceased did not drink alcohol.

1. It was not until they had returned from the posting to Malaya that the Applicant came to the opinion that her husband had a problem with alcohol. She had previously just regarded him as a "big drinker" even though in 1957 her husband had been involved in a motor vehicle accident whilst intoxicated. The Applicant also stated that there was an occasion in Malaya when her husband drove while still intoxicated and the motor vehicle left the road. Service in Malaya involved an active social life and her husband kept alcohol at home and drank 6-10 beers a night when they had visitors. Sometimes he drank more.

2. Attached to the Applicant's Statement of evidence (Exhibit A2) are copies of letters written by the deceased to the Applicant prior to their marriage. It is fair to say that these show that the deceased, at that time, often drank to the stage that he was intoxicated and that alcohol was a constant topic of his conversation.

3. Exhibit A6 is a statement by the deceased's brother. Unfortunately Mr Clifton Mychael was not available for cross-examination but he does say that the deceased did not drink alcohol before he enlisted and that he was drinking "a fair bit" after "his return from service" by which we assume he meant after the deceased's first period of operational service which, as stated above, was in Singapore. He does not say that his brother told him why he was drinking or what caused him to start.

4. Exhibit A5 is a statement dated 16 November 2000 by George S Dickie who served with the deceased in the RAAF. Mr Dickie also made a statement which was before the Veterans' Review Board. This statement is at document T12 page 63 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

5. In his initial statement Mr Dickie says:

   "I have no doubt whatsoever that this overindulgence was brought about by the peer pressure exhorted on him and all other RAAF members to drink at every available occasion. So much so that in the passage of time it became a way of life. It was, for instance, expected that you would go to the mess every afternoon afterward to drink and socialised with a fellow members. Vernon was a good sportsman and represented the RAAF at both tennis and cricket. After such events it was almost mandatory that you would retire to the mess to entertain or to be entertained by the opposing teams by "having a few bears"."

No mention is made in that statement of any stressful service the deceased may have had. However in his later statement Mr Dickie said:

"I know also that Mr Mychael would have seen stressful service when he was based in Singapore with the No.3 squadron. He was stationed there as armourer to ensure that the planes were loaded with the correct weaponry. The fighter aircraft used to fly out to the northern part of Malaya to drop the bombs when we were at war with the Chinese Malay Communist Party. Mr Mychael was with the No.3 squadron based in Singapore during this active war zone for approximately 18 months. I am sure that he would have seen accidents. Furthermore, he would have been mates with the pilots and navigators that went out on the bombing raids. There was great pressure and responsibility in this regard as it was his job to ensure that his mates in the aircraft left and came home in one piece. There would have been enormous pressure on Mr Mychael to ensure that the weaponry was loaded correctly as it was the pilots' and navigators' only protection. If he did not do his part correctly, the operation would not be a success. In the course of conversation, Mr Mychael often commented that he was concerned that his mates would go out on a mission and never come back."

This material from Mr Dickie is short on specifics. In particular the deponent cannot say that the deceased saw accidents. Furthermore he attempts to bolster the Applicant's case by exaggeration. At the time of the Communist insurgency in Malaya, bomber aircraft (not fighters and Mr Dickie an ex-RAAF member would well know the difference) of the RAAF, being Lincoln bombers, were used to bomb suspected terrorist bases or supply lines. The Malay Communist Party did not have anti aircraft weapons. All that was required of the RAAF aircraft was that they fly to a set of map coordinates, drop their ordinance, then descend to tree top of level and straf the entire area with machine gun and canon fire and then return.

1. Exhibit R3 is a report by a historian covering the period of the deceased's operational service in Singapore. The report concludes by stating:

   "Mr Mychael was responsible, along with other armourers and ground crew, for the maintenance, preparation, loading and arming of weapons before take off and the disarming of aircraft after return to base. He would have known crew members from day to day duty contact but his responsibility to "ensure that his mates in the aircraft left and came home in one piece" would not have been greater that other squadron members. He may have made closer friendships with some squadron aircrew during off-duty social and sporting activities but again, probably no more than other ground crew members.
   The CT did not possess any anti aircraft weapons other than small arms. There are no records of any squadron aircraft being hit by enemy fire. There were no casualties suffered by aircraft or crew from enemy action during this period. There were no serious accidents at Tengah involving 1 Squadron aircraft and therefore no casualties during this period."

1. We note that Mr Dickie's statement refers to the deceased being based in Singapore with No 3 Squadron. The deceased record of service (document T3) shows that his posting in Singapore was with No 1 Squadron. No objection was taken to the report, which became Exhibit R3.

2. Given the material before us all we can find is that the deceased probably commenced a pattern of drinking alcohol in quantities regarded as being quite "hazardous" during his service in Singapore, but this is a temporal connection only and there is nothing in his service which would have caused or encouraged him to commence to drink alcohol. In particular there is no material which would point to the deceased "experiencing a severe stressor" as that term is defined in Instrument No 5 of 1994.

3. Both hypotheses contended for by the Applicant depend upon an acceptance of the deceased's alcohol consumption being in some way caused or contributed to by his operational service. As pointed out above, by the time of the deceased's second period of operational service he was already habituated to alcohol and in so far as his first period of operational service is concerned, the material before us is insufficient to point to an hypothesis which connects his alcohol habituation with service. The decision under review will therefore be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr M D Allen, Senior Member
Dr  J Campbell, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  14 December 2001; 17 June 2002 
Date of Decision  27 June 2002
Counsel for the Applicant  Mr M Vincent 
Solicitor for the Applicant  Dibbs Barker Gosling 

Representative for the Respondent        Ms S Breuer, Department of Veterans' Affairs