Pamela Smyly and Repatriation Commission

[2010] AATA 127

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4262

GENERAL ADMINISTRATIVE DIVISION		)
Re		Pamela Smyly

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Dr S Toh, Member

Date              18 February 2010

PlaceSydney

Decision The Tribunal affirms the decision under review.

....................[sgd].....................

Senior Member

CATCHWORDS

Veterans' Affairs - War widow's pension - eligible service - kind of death ischaemic heart disease - whether veteran developed anxiety disorder with features of post-traumatic stress disorder - whether smoking and drinking increased as result of service – Tribunal not satisfied that veteran’s death was related to service - decision under review affirmed.

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

18 February 2010	Senior Member Jill Toohey
Background

1.      Mr Alan Smyly served in the Royal Australian Navy from December 1967 to November 1986.  His widow, Mrs Pamela Smyly, seeks review of a decision, made by the Repatriation Commission (the Commission) and affirmed by the Veterans Review Board, to refuse her application for a war widow’s pension. 

2.      Mr Smyly died on 30 October 2006.  According to his death certificate, the cause of his death was:

Part I

a)Cardiac arrest, 10 minutes

b)Atrial fibrillation, 6 years

c)Ischaemic heart disease, 6 years

Part II
           Diabetes, 5 years

Carcinoma prostrate, 4 years

3.      Mrs Smyly contends that events in 1973 while her husband was serving as a submariner led to an anxiety disorder with features of post-traumatic stress disorder which in turn led to an increase in his alcohol consumption and cigarette smoking and, eventually, to his death.

4.      By s 13 of the Veterans’ Entitlements Act 1986 (the Act), Mrs Smyly will be entitled to a widow’s pension if her husband’s death was “war-caused”.  It will be “war-caused” if it arose out of, or was attributable to, his eligible war service:  s 8(1) of the Act.

5.      Mr Smyly’s service from December 1967 to January 1968 is operational service for the purposes of the Act.  His service from December 1972 to November 1986 is eligible service for the purposes of the Act. 

The issues

6.      There is no dispute that Mr Smyly’s kind of death was ischaemic heart disease. 

7.      We have to decide whether Mr Smyly’s death was related to his service such that Mrs Smyly is entitled to a war widow’s pension. 

8.      As Mrs Smyly’s claim arises out of her husband’s eligible service, rather than his operational service, the standard of proof to be applied is the reasonable satisfaction of the Tribunal: s 120(4) of the Act.

Mrs Smyly’s evidence

9.      Mrs Smyly met her husband in England where he served in the Royal Navy.  They married there in 1957.  They came to Australia for two years in 1961 then returned here permanently in about 1967.

10.     Mrs Smyly says that, when they met, her husband would occasionally have a beer with his meal and a cigarette with friends.  When their infant daughter died at seven months of age, he was very upset and emotional but did not resort to alcohol or smoking.  He was a caring and devoted husband.He was light drinker and would have one average one or two beers, or a whisky, a day. 

11.     Over time, Mr Smyly’s drinking and smoking increased.  In the early 1960s, when they lived in England and their children were young, Mr Smyly would smoke about 12 cigarettes a day. Mrs Smyly started to notice changes in him around 1967 when they returned to Australia and he joined the Royal Australian Navy. Around this time, his smoking increased to 12 to 20 cigarettes each day.  He stopped for a time between 1974 and 1976 but started smoking again on account of the stressful nature of his work as a submariner. 

12.     In the 1980s Mr Smyly’s drinking became heavy.  He never drank at work but at home he would have two large bottles of whisky a week as well as wine and beer, and this pattern continued after he was discharged.  For about two years after he retired he worked on Cockatoo Island but gave that up because of the stress of driving a long distance to work.   When he was not drinking he would be constantly worried.  Once he retired he would drink more or less every day, and he smoked more. 

13.     In the 1990s Mr Smyly’s doctor told him his drinking was a health concern.  He was drinking three to four light beers a night at home but he would regularly go to the local bowling club where he would drink so much that he could not drive home and Mrs Smyly would have to collect the car.

14.     In a Department of Veterans Affairs questionnaire in 2006, Mrs Smyly stated that it was difficult to say just when her husband’s smoking increased but it was probably the early 1980s.  He started smoking about 20 cigarettes a day in the Royal Navy, gradually increasing while in the Royal Australian Navy to around 30 per day in the last 10 to 15 years of his life.  We note that the first figure is slightly higher than Mrs Smyly’s written statement to the Tribunal and second figure is considerably higher. It is also higher than Ivo Smyly’s estimate but we note that he did not live at home after 1986.

15.     Mrs Smyly says her husband never spoke about his service but once said she had no idea what he went through and how close to death he came.  She says he was having nightmares after he returned from New Zealand in 1973 and he changed a bit. Although he did not discuss it with her, she knows from Bill Hosie, who served with him, some of what he went through at that time. 

16.     Mrs Smyly says, and there is no reason to doubt, that her husband was a good worker throughout his naval career and up to his retirement.  He apparently never drank while on duty and, although we have not seen them, we are told that his service records show that, in February 1984, he received the flag officer’s recommendation.

Ivo Smyly’s evidence

17.     Mrs Smyly’s son, Ivo, supports her account.  He says that, when he was young, his father spent all his time with the family but he started to change when Ivo was about ten (he was born in 1960).  Over the next three or four years, things changed to the point that they had no relationship.  His father started to drink more, he became socially isolated and the family avoided him because he was always cranky and irritable. 

18.     Ivo Smyly recalls five or six occasions when his father would sleepwalk and would talk in his sleep, apparently to mates on board.  He told Ivo at some stage that he felt he was mentally unstable.  He occasionally mentioned the navy but would say he could not discuss what happened to him because it was classified information.

19.     Ivo Smyly gave evidence that his father would drink a bottle of wine on weeknights and at least one bottle of spirits on the weekend together with wine and beer.  When he was ill with prostrate cancer towards the end of his life, he cut down and then gave up altogether.  He recalls his father smoking on average a packet of cigarettes a day during his teenage years, although he gave up for about two years around 1974 to 1976.  After that, he probably smoked a bit less, around 15 to 20 cigarettes a day, and continued up until his death.

Mr Hosie’s evidence

20.     Mr Bill Hosie, who served as a submariner with Mr Smyly during 1972 to 1974, provided a written statement in support of Mrs Smyly.  He describes the constant stress that a submariner is under and that Mr Smyly, as Chief Engineer, was under in particular.

21.     Mr Hosie describes an incident in early 1973 when the submarine was near the Philippines; there was an explosion and the system shut down.  He says Mr Smyly began smoking heavily after this incident.  In September 1973 they were in New Zealand waters when a hydraulic valve gave out and the motor room was flooded.  When they had a drink shortly after this incident, Mr Smyly said he felt he had used up all his lives and was getting “too old for the game”.  His smoking increased after this and he would smoke and drink for hours at lunchtime and after work.

Medical evidence

22.     We have before us a report from Dr Ian Hayes, a psychiatrist, whose report is based on an interview with Mrs Smyly and Ivo Smyly in February 2007, various naval medical records and correspondence from the Department of Veterans Affairs.   Dr Hayes notes that Mr Smyly had hypertension when he was retired in 1986 and had since developed atrial fibrillation, ischaemic heart disease and diabetes.

23.     Dr Hayes states that Mr Smyly never clarified why he had such a compulsion to drink.  He comments that it was difficult in Mr Smyly’s absence, to obtain any certainty in diagnostic matters, and that official secrecy surrounding certain events and Mr Smyly’s reluctance to discuss events complicated matters further.  He notes that, by the late 1970s, Mr Smyly had marked psychological disturbance with impaired sleep, withdrawal and avoidance, and symptoms of anxiety, suggestive of, but not diagnostic of, a post traumatic stress disorder. Dr Hayes considered that the best description was that he seemed to have developed an anxiety disorder by the time he was discharged; it was probable that he was affected by the stress of being a submariner. 

24.     Dr Michael O’Rourke, a cardiologist, reviewed clinical notes and documents concerning Mr Smyly including Dr Hayes’ report.  He concluded that Mr Smyly died of ischaemic heart disease with terminal cardiac arrest due to a combination of factors including male sex, age, hereditary factors, life long cigarette smoking and hypertension, none of which he was able to relate to any part of Mr Smyly’s service. 

Other evidence

25.     We have seen an extract of a report of a navy investigation conducted after the incident off New Zealand in 1973.  The Commander of the Australian Navy Submarine Group comments that, while probably not life threatening, the psychological impact of the kind of situation in which Mr Smyly found himself could be quite significant and would have been exacerbated by being in a confined compartment.

26.     Records of navy medical examinations in 1972, 1978 and 1982 indicate that Mr Smyly’s emotional stability and mental capacity were “normal”.  We read those records with some caution; they are ticked boxes only and it would not be surprising for someone in Mr Smyly’s position to underplay any such symptoms.  Nevertheless, they record the opinion of the medical officer at the time.

27.     In 1982 Mr Smyly told the medical examiner that he smoked “>15/day”.  Notes of an examination in March 1987 after he was discharged record that he started smoking around the age of 20 and still smoked 15 to 20 cigarettes a day; he had never smoked more at sea and would often smoke less.  He started drinking around the same age and was always a moderate drinker but was drinking more than before he was discharged and felt he should drink less. 

Statements of Principles

28.     Before it can be said, on the balance of probabilities, that a death is connected with service, at least one of the factors in a relevant Statement of Principles (SOPs) must be related to his service.  The relevant SOPs and factors contended for are:  

Ischaemic Heart Disease:  No 90 of 2007 as amended by No 44 of 2009

(a)having hypertension before the clinical onset of ischaemic heart disease;

(h)where smoking has not ceased prior to the clinical onset of ischaemic heart disease:

(i)        smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or

(ii)smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; 

(p)(iv)      having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease;

“A clinically significant anxiety spectrum disorder as specified" means one of the following disorders:

(a) anxiety disorder due to a general medical condition;

(b) generalised anxiety disorder;

(c) panic disorder;

(d) phobic anxiety;

(e) posttraumatic stress disorder; or

(f) anxiety disorder not otherwise specified,

that attracts a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.

Anxiety Disorder:  No 102 of 2007

The meanings of “generalised anxiety disorder”, “anxiety disorder due to a general medical condition” and “anxiety disorder not otherwise specified” are in this SOP which relevantly requires a life-threatening event within two years before the clinical onset of anxiety disorder.

Atrial fibrillation:  No 20 of 2003

(b)suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation

Hypertension: No 36 of 2003 as amended by No 12 of 2008

(b)consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension;

Consideration

29.     This matter is made difficult by the limited available evidence.  Mr Smyly is not here to give evidence and he did not talk about his experiences during his lifetime.  Mr Hosie was not well enough to attend the hearing; we have no reason to doubt his written statement but it only takes matters so far.  To add to that, we have only limited medical evidence.

30.     We accept that the events in 1973 would have been stressful for Mr Smyly.  We accept that his behaviour changed over time and more so after his discharge from the navy.  We accept the evidence of Mrs Smyly and Ivo Smyly about Mr Smyly’s behaviour and about his comments to them. 

31.     However, we are not satisfied, on the balance of probabilities, that either incident in 1973 was life-threatening or that Mr Smyly developed an anxiety disorder within two years as required by the SOP for anxiety disorder.  There is insufficient evidence to support that finding.  If anything, the fact that he continued to work for many years without apparent ill effect, that he received a recommendation on discharge and that his records indicate that his emotional stability was normal, weigh against such a conclusion. Further, Ivo Smyly’s evidence was that his father started to change around 1970, before the incidents on board.

32.     Dr Hayes could only say that Mr Smyly’s symptoms, as described to him, were suggestive, but not diagnostic, of a post traumatic stress disorder and that he seemed to have developed an anxiety disorder by the time he was discharged.  Dr Hayes did not diagnose a post traumatic stress disorder or anxiety disorder and at most he could say that it was probable that he was affected by the stress of his work as a submariner. 

33.     The evidence is that Mr Smyly smoked from an early age, although it is difficult to establish just how much at different times.  There are estimates of his smoking when younger, from as low as 10 per day up to 30 per day.  It appears to have fluctuated but to have remained reasonably steady at about 15 to 20 per day throughout his life.  It is possible that Mr Smyly understated his smoking when he told the medical officer in 1982 that he smoked something over 15 cigarettes a day, and said in 1986 that he smoked 12 cigarettes a day but, even allowing for this, the evidence is that it remained fairly constant over his lifetime and that any increase was minimal.

34.     Mrs Smyly responded in a Department of Veterans Affairs questionnaire that her husband smoked about 30 cigarettes a day towards the end of his life.  This is at odds with Ivo Smyly’s estimate of 15 to 20 cigarettes per day, although he did not live at home after 1986 and his estimate may therefore be less reliable.  It also appears to be at odds with Mr Smyly’s statement to the Department of Veterans’ Affairs doctor in March 1987.

35.     On balance, we are not satisfied that Mr Smyly’s smoking increased significantly across his lifetime.  If it did increase to some extent, we are not satisfied that it was related to his service.  It is relevant that, although he later resumed smoking about 15 to 20 cigarettes a day, he was able to stop smoking for around two years right after the 1973 incidents.  In our view this weighs against a connection between the two.  A connection might be plausible but it would be speculation to reach that conclusion on the evidence before us.

36.     Mr Smyly’s death certificate indicates that he had ischaemic heart disease for six years before his death, that is, from about 2000.  His medical records show that he had hypertension when discharged in 1986.  For the relevant factor in SOP 23 of 2006 to be met, Mr Smyly had to drink 50 standard drinks per week continuously in the six months before the development of hypertension. 

37.     It is difficult to say with any certainty how much Mr Smyly was drinking at that time.  The evidence suggests that the routine and discipline of work may have kept his drinking below this level and that it was only once he retired that it increased to this extent.  However, we accept that his drinking increased over time, especially after his discharge. 

38.     The reasons for Mr Smyly’s increased drinking are not entirely clear and appear to be several: he was apparently happier in England where they had friends; he was a “worrier”; after he retired he found driving to his job at Cockatoo Island stressful and had to give it away.  The stress of being a submariner may well have played a part but we can only speculate about this.  It is possible that he could not adjust to retirement but that too would be speculation.

Conclusion

39.     We are not satisfied, on the evidence, that Mr Smyly developed an anxiety disorder or that his smoking did in fact increase.  We accept that his drinking increased over time.  However, we accept the respondent’s contention that it is only speculation that incidents in 1973 were a stressor in the relevant sense. 

40.     We are not satisfied, on the balance of probabilities that Mr Smyly’s death was related to his service.  We therefore affirm the decision under review.

I certify that the 40 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ...................[sgd]...........................................................
           Diana Weston  Associate

Date of Hearing  14 December 2009
Date of Decision  18 February 2010

Representative for the Applicant  Hela Ebrahimi, Vardanega Roberts Solicitors

Counsel for the Applicant:  Craig Colbourne

Representative for the Respondent:               Stephen Thompson, Sparke Helmore