Pascoe and Repatriation Commission
[2005] AATA 163
•23 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 163
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/970
VETERANS' APPEALS DIVISION ) Re IRIS PASCOE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date23 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd].......................
RG Kenny
Member
CATCHWORDS
VETERANS - benefits and entitlements - widow’s pension - operational service with Australian Army – death from ischaemic heart disease - application of Statement of Principles for anxiety disorder, alcohol abuse/dependence and hypertension - no reasonable hypothesis of relevant relationship to service - veteran’s death not war-caused
Veterans’ Entitlements Act 1986 s6A, 7, 8, 11, 16, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCA 82; (1998) 49 ALD 193
Gorton v Repatriation Commission [2001] FCA 1194; (2001) 65 ALD 609
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Lees vRepatriation Commission (2002) 74 ALD 68REASONS FOR DECISION
23 February 2005 Mr RG Kenny, Member Background
1. Cecil Pascoe served in the Australian Army from 2 March 1941 until 10 September 1941. He died on 12 March 1985 at the age of 70 years. His widow, Iris Pascoe, contends that her late husband’s death was causally related to his service.
2. On 4 September 2002, Mrs Pascoe lodged a claim in accordance with section 16 of the Veterans’ Entitlements Act 1986 (the Act). On 11 October 2002, the Repatriation Commission (the respondent) determined that the veteran’s death was not service-related and rejected her claim. That decision was affirmed by the Veterans’ Review Board on 5 August 2003 and, on 17 November 2003, Mrs Pascoe lodged an application for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mrs Pascoe was represented by Mr J Selfridge of counsel and the respondent was represented by Mr B Williams, Departmental advocate.
4. The following material was tendered and taken into evidence;
exhibit 1the documents prepared in accordance with the section 37 Administrative Appeals Tribunal Act 1975 (the T documents - T1 – T6);
exhibit 2, 3 & 4 statements, dated 5 February 2004, 2 April 2004 and 29 July 2004, respectively, by Mrs Pascoe
exhibit 5a Medical History Sheet, dated 13 October 1969, relating to the veteran.
Issue and Legislation
5. It is common ground that Mrs Pascoe is a dependant, as defined in section 11 of the Act, entitled to make a claim under section 16 of the Act for a widow’s pension. It is also common ground that the veteran rendered eligible war service in the form of operational service in accordance with sections 7 and 6A of the Act. In accordance with subsection 8 (1) of the Act, his death will be taken to have been war caused if it arose out of, or was attributable to, any eligible war service that he rendered.
6. The standard of proof applicable to the determination of entitlement claims for operational service is set out in subsection 120 (1) of the Act which reads;
“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.”
7. The application of that provision is affected by the terms of sub-section 120(3) of the Act and section 120A of the Act which require that consideration be given to any relevant Statements of Principles (SoPs) which have been published by the Repatriation Medical Authority (RMA).
Cause of Death
8. The veterans’ death certificate describes the cause of death as myocardial infarction due to atherosclerosis which had been present for years. Other significant conditions referred to on the certificate but identified as not being causally related to death were Parkinson’s disease and carcinoid of small bowel. Dr Ian Smith who is a medical advisor to the respondent completed a medical report, dated 31 March 1999, in which he expressed the opinion that the underlying cause of death was ischaemic heart disease. This is not disputed by the parties.
Principles of causation:- the Deledio steps
9. The Federal Court in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92 set out a four step procedure for determining issues of causation where operational service has been rendered. The first of these requires that there be material which points to an hypothesis connecting the condition which caused death to service. Mr Selfridge referred to the veteran’s medical discharge from the army after serving for a little over 6 months. He contended that the effect of this cessation of service resulted in the veteran developing anxiety disorder which then led to a heavy consumption of alcohol to the extent that he developed alcohol dependence or abuse. Further, he contended that this led to the development of hypertension which, in turn, was responsible for the development of ischaemic heart disease. I accept that this constitutes an hypothesis comprising four separate component hypotheses.
10. The second of the four Deledio steps requires identification of the relevant SoPs. In this matter, these will be the SoPs for each component hypothesis i.e. for anxiety disorder, alcohol abuse/dependence, hypertension and ischaemic heart disease. At the time when the Mrs Pascoe’s claim was made, the following SoPs applied:
for anxiety disorder: Instrument No. 1 of 2000;
for alcohol dependence or abuse: Instrument No. 76 of 1998;
for hypertension: Instrument No. 31 of 2001; and
for ischaemic heart disease: Instrument No. 38 of 1999.
11. Subsequently, the RMA published further SoPs in respect of hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004) and ischaemic heart disease (Instrument No. 53 of 2003 as amended by Instrument No. 9 of 2004). In Gorton v Repatriation Commission [2001] FCA 1194, the Full Court of the Federal Court determined that the relevant SoPs for a particular condition in force as at the date of this review is to be applied unless the earlier Instrument is expressed in more favourable terms from the veterans’ perspective. In this case, it was common ground that the more beneficial SoPs are those which were in force at the date of claim.
12. The third Deledio step requires a consideration of whether the hypothesis advanced on the veteran’s behalf is a reasonable one and this requirement will be met if the hypothesis fits the template provided by a relevant factor and associated definition in each of the SoPs. If it does not meet that requirement, the hypothesis will not be reasonable. If it does meet that requirement, the fourth Deledio step requires an assessment of the factual basis on which the hypothesis rests and the condition under consideration will be war-caused unless the decision maker is satisfied beyond reasonable doubt that it is not.
13. The relevant factors and associated definitions from the SoPs noted above read:
“anxiety disorder
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…..
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder;
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
“psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
alcohol dependence or abuse
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
hypertension
(a) being obese at the time of the clinical onset of hypertension; or
(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; or
ischaemic heart disease
(a) the presence of hypertension before the clinical onset of ischaemic heart disease;”
Evidence
14. Mrs Pascoe said that she had suffered a stroke in 2004 and that this had affected her memory. She gave the following evidence. She married the veteran in 1942 but had known him from before the war. He did not consume alcohol at that time but, on returning from service, his behaviour changed and he drank alcohol regularly and also took up gambling. He continued with his alcohol consumption until his death. He drank in hotels after work and on weekends but only consumed alcohol in the house in the company of visitors. He was employed as a tram driver for some thirty years and did shift work. Mrs Pascoe had no idea why he consumed alcohol so often and had never discussed it with him. She described him as a nervous sort of person after the war. By this, she meant that he was often bad tempered especially after consuming alcohol. Mrs Pascoe said that she did not discuss with her husband any details of the war and had never asked him or subsequently found out why he had returned to Australia and was discharged after serving only 6 months.
15. Sandra Stapleton also gave evidence. She is the daughter of Mrs Pascoe and the veteran. She confirmed that her mother had a stroke in 2004 which had effects on her memory. Mrs Stapleton typed the documents comprising exhibits 2, 3 and 4 which were then read by her mother. Mrs Stapleton included information from her own understanding of her father’s life history and also matters her mother told her. She said her mother read over the statements and confirmed that they were correct. In the statement, dated 5 February 2004, the veteran was described as having increased his weight dramatically after the war reaching 20 stone as compared with his enlistment weight of less than 12 stone and Mrs Pascoe expressed the belief that this obesity had contributed to the development of hypertension.
16. Mrs Stapleton said that her father had suffered from a nervous breakdown some time during the 1950s and had been hospitalised in the Royal Brisbane Hospital. At the time, she had been required to live away from the family home and stay with her grandparents. She said that her father frequented hotels and had little to do with her and her brother during their childhood. She described him as a “happy drunk” who spent a lot of time in hotels with his mates and said there was not a lot of alcohol kept in the house unless relatives were there. She had not spoken to her father about the war but understood his family to have had a proud military history with his father and uncles all serving in the Army during World War I. She could recall seeing photographs of the men in military uniform at her grandparents’ house. She also said that there was a photograph of her father in military uniform in the family home as she was growing up. She had no understanding of why he was discharged from the army until many years later.
17. Mrs Stapleton believed that her father had experienced heart attacks in the 1950s or 1960s but could not be more precise than this. She described him as an anxious person who had never discussed the reasons for his consuming alcohol with her. She was not able to comment on whether her father had felt disappointment from being discharged from the army.
18. Dr Paul Crowley practices in Lowood and is Mrs Pascoe's treating doctor. He also attended the veteran for two years before he died. Dr Crowley said that Mrs Pascoe had suffered a transient ischaemic attack in 2004 but said that there had been no permanent impairment in her memory as a result of it. He said that Mrs Pascoe’s memory had never been an issue and he believed that her memory was quite good.
19. Dr Crowley said that the veteran had told him that he had been suffering chronic anxiety since his discharge from the Army in 1941 and that he had used alcohol over the years to relieve his symptoms. He also said that he was told by the veteran that he had been in a psychiatric unit at the Royal Brisbane Hospital at some stage after the war. He said that, when he saw him, he was an obese man with poorly controlled hypertension who had three myocardial infarcts before the final episode in 1985.
20. In a report that he completed for the proceedings at the Veterans Review Board, Dr Crowley said that the veteran had suffered symptoms of anxiety since his military service, that this was the reason for his discharge from the Army and that this had caused him to drink alcohol excessively. Dr Crowley said that this excessive consumption led to obesity and hypertension and, eventually, to his death from myocardial infarct.
Service Records
21. The veteran was categorised as “fit class 1” at his initial medical examination on 3 March 1941. Shortly thereafter, he travelled to Port Moresby where he disembarked on 22 March 1941 and stayed until 19 August 1941. During that period, he was treated for frontal sinusitis and the following history is recorded in his service medical records on 30 April 1941:
He states that prior to coming here he was always in good health. Soon after arrival he went on a route march and got wet walking through water and lying down in wet grass carrying out manoeuvres and stated that he got the worst cold in the head he has ever had. After about a week he developed severe pains of the right eye and was admitted after another day or two to the CDS suffering from frontal sinusitis.
22. That record also noted that the veteran had suffered breathing difficulties when he was a lad and the opinion was given that this might have predisposed him to sinusitis. On 30 May 1941, the veteran was noted to be suffering from frontal sinusitis with persistent headaches. He was described as “a very frequent attendee at sick parade”. On 9 July 1941, he was recommended for discharge. He returned to Australia in August 1941 and was discharged medically unfit on 10 September 1941. His discharge medical report records the reason for this as “Frontal Sinusitis”.
Deledio Steps 3 and 4: Anxiety Disorder
23. Factor (a)(i) of the SoP for anxiety disorder is the experiencing of a severe psychosocial stressor in the two years immediately before the clinical onset of anxiety disorder. The definition of that form of stressor includes loss of employment. In a sense, that is what happened when the veteran was medically discharged from the army. The material must also point to a clinical onset of anxiety disorder within a time-frame of two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but it will be identified if a veteran reports to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicate that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Lees v Repatriation Commission (2002) 74 ALD 68. Dr Crowley observed that the veteran suffered from symptoms of this condition since his military service. That points to a compliance with factor (a)(i) for anxiety disorder and, therefore, the hypothesis advanced by Mr Selfridge is a reasonable one insofar as that condition is concerned.
24. This final step in relation to anxiety disorder requires a consideration of the factual basis on which the hypothesis rests. The death of the veteran will be war-caused unless, after considering the evidence, I am satisfied beyond reasonable doubt that it is not so caused.
25. Mrs Pascoe described the veteran as a nervous man and said that his behaviour had changed when compared with what it was before he joined the army. In her evidence, Mrs Pascoe said that she was not aware of why her late husband had been discharged and had not discussed with him his feelings about returning to Australia early. In that regard, there was inconsistency in what she said in evidence and what was in a statement completed by her on 23 June 2003 for the purpose of the hearing before the Veterans’ Review Board. There, Mrs Pascoe said that the veteran had confided in her that he was ashamed of being discharged from the Army and had been proud of the fact that his father and uncles had fought for Australia in war. Both she and her daughter had said she had suffered a stroke in 2004. However, Dr Crawford clearly indicated that she had suffered only a transient ischaemic attack and he said that there were no issues relating to her memory and, indeed, said that she had a good memory. Mrs Pascoe is a somewhat unreliable historian but, even if her written version was accepted as correct, it does not constitute a diagnosis of anxiety disorder.
26. Dr Crowley treated the veteran for about two years before he died. He said that the references to feelings of anxiety from the time of his military service were related to him by the veteran. Similarly, he was advised by the veteran that symptoms of chronic anxiety and panic disorder had caused the veteran to be discharged from his military service in 1941. The veteran’s service records do not support that position. His discharge medical record nominates “Frontal Sinusitis” as the sole reason for discharge. Clearly, Dr Crowley was relying on an incorrect history of the development of anxiety disorder. There is evidence that the veteran suffered from some kind of nervous problem in the 1950s or 1960s but that is well outside of the time-frame required for the SoP. I am satisfied beyond reasonable doubt that there was no clinical onset of anxiety disorder within the two year period, commencing in September 1941, as required by the SoP. In that situation, the veteran’s anxiety disorder was not war-caused.
Deledio Step 3: Reasonableness of hypotheses (Other Conditions)
27. Factor (a) in the SoP for alcohol abuse/dependence relies on the presence of a service-related psychiatric condition. The only such condition which might have relevance in this matter is anxiety disorder. On the basis of the finding that this was not war-caused, there is no material which points to a satisfaction of that factor in the SoP. This means that the hypothesis, insofar as it relates to alcohol abuse/dependence, is not reasonable.
28. No specific submission was made that the veteran’s alcohol consumption was related to his service apart from it being a response to a psychiatric disorder. However, factor (b) of the SoP for alcohol abuse/dependence provides an alternate means of associating alcohol abuse/dependence with service. This is where a veteran experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. However, the definition of experiencing a severe stressor, as it appears in that SoP, is not pointed to by the evidence in this case.
29. Factor (b) for hypertension relies on the presence of alcohol abuse/ dependence and that condition must be related to service. On the basis of the above finding for that condition, this element of the SoP is not pointed to in this case. This means that the hypothesis, insofar as it relates to hypertension, is not reasonable.
30. The veteran suffered from hypertension and factor (a) for ischaemic heart disease relies on the presence of that condition. However, it must be service related and that is not the case in this matter. This means that the hypothesis, insofar as it relates to ischaemic heart disease, is not reasonable.
31. The role of obesity in the development of ischaemic heart disease in the veteran was not specifically relied on at the hearing but was referred to in the initial statement of facts and contentions from the applicant. Obesity, it was noted, had developed because of excessive alcohol consumption. This is recognised in factor (c) of the SoP for ischaemic heart disease. However, for that chain of causation to be accepted, the alcohol dependence/abuse would need to be war-caused and no reasonable hypothesis of this has been made out.
32. There is no reasonable hypothesis of a relevant relationship to the veteran’s service for alcohol abuse/dependence, hypertension or ischaemic heart disease. This means that those conditions are not war-caused and it follows that the veteran’s death from those disease processes was not war-caused.
DECISION
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 28 January 2005
Date of Decision 23 February 2005
Counsel for the Applicant Mr J Selfridge
Solicitor for the Applicant Sciaccas, Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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