Phillips and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 744

Phillips and Repatriation Commission (Veterans’ entitlements) [2015] AATA 744 (24 September 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/1178
Re	Maureen Phillips
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President Dr S Toh, Member
Date	24 September 2015
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war caused. The date of effect of this decision is 7 September 2013.

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The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

VETERANS AFFARIS – war widow's pension – whether death war caused – cause of death cardiomyopathy – whether alcohol consumption related to service – whether reasonable hypothesis connecting death to service – hypothesis considered reasonable – decision set aside and substituted

LEGISLATION

Veterans' Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles concerning Cardiomyopathy (No. 85 of 2015)

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President
Dr S Toh, Member

24 September 2015

1. This is an application by Mrs Phillips (the applicant) the widow of Mr Geoffrey Phillips (the veteran) for review of a decision of the Veterans Review Board affirming a decision which determined that the death of the veteran was not war caused and that the applicant was not entitled to a widow’s pension under the Veterans' Entitlement Act (1986) (Cth) (the Act).

2. The veteran died in March 2012 aged 64 years. The causes of death as indicated on the death certificate are as follows:

   ·Dilated cardiomyopathy, 10 years

   ·renal failure, six months

   ·liver failure, six months

3. The veteran served in operational service in Vietnam from 15th of February 1971 to 16 October 1971 a period of approximately 8 months.

   THE ISSUES

4. The kind of death in this case is cardiomyopathy. The central issue is whether the evidence establishes that the veteran’s death was war caused and in particular whether clause 9(1) in the Statement of Principles concerning Cardiomyopathy (85 of 2015), has been satisfied.

5. In order to raise a reasonable hypothesis connecting cardiomyopathy or death from cardiomyopathy with the circumstances of a person’s relevant service in the present circumstances, there must be evidence that the veteran was drinking at least 125 kgs of alcohol within any continuous five-year period before the clinical onset of cardiomyopathy.

6. In the present case the cause of death (cardiomyopathy) was diagnosed in 1999 that is to say 13 years prior to death.

   EVIDENCE

7. The applicant gave evidence that at some time in the 1980s the veteran became a neighbour of the applicant. In 1991 she first got to know him a bit and a relationship developed. In October 1993 they were married.

8. From the outset of the marriage the veterans’ behaviour was strange in that he slept on the floor. He was very reticent in talking about the war. It appears that he had been exposed to Agent Orange. He recounted to his wife several horrific incidents which he had experienced in service. After he returned to camp and cleaned up he would sit around the camp and drink with others and “get plastered”, and that is what is said to have started his drinking problem. The applicant recounted that her sister-in-law had told her that he did not drink prior to being called up at the age of 17 when he enlisted in the army.

9. While they were married the applicant said she saw him drinking daily in the order of at least two to three longneck beers a day and he later took to drinking red wine. This drinking continued throughout the marriage. Around 2010 he had kidney failure and had to cut down his alcohol intake. When he stopped drinking beer he continued to drink bottles of red wine. He was reluctant to see doctors and didn’t want to share anything them as he considered it was none of their business. On occasions he suffered nightmares and was strongly disturbed emotionally and shouted out.

10. He was often angry and had no interest in military celebrations or RSL clubs and even refused to visit the Australian War Memorial. The applicant said that he may well have drunk more as she was not there all the time since she had to look after her elderly parents who lived nearby. On one occasion, she recounted an incident where whilst in Darwin he had been drinking so heavily to the extent that he did not realise that a cyclone was causing devastation in Darwin during Cyclone Tracy in 1974.

11. The veteran’s daughter who was born in 1995 and is now 20 years of age gave evidence that she had many conversations with her father about his Vietnam experiences. He told her that he drank alcohol continually in Vietnam with his fellow soldiers in the canteen as a means of relaxation and camaraderie.

12. He said they had been engaged in enemy combat and fire fights and that he witnessed mutilations on corpses as a result of the fighting. Her father also told her that he drank to try and forget these fearful and traumatic events. She stated that when he was at home she witnessed him drinking regularly using large bottles of beer and bottles of red wine. When she was doing her homework and he was present with her he would bring a bottle of wine into the room with him.

13. Dr Nestel, who gave evidence for the applicant, noted that alcohol is one of the predisposing and probable causal factors of dilated cardiomyopathy and considered that the amount of alcohol stipulated in the statement of principles is in the order of six to seven standard drinks daily. He considered from the evidence of the daughter that this amount was likely to have been consumed by the veteran over a substantial period.

14. For the respondent, evidence was led from Professor O’Rourke a distinguished and experienced cardiologist who noted that other practitioners in their medical records had made no notes of alcohol as a factor in the cardiomyopathy of the veteran. He considered this was powerful evidence that this was not an issue in relation to the veteran.

15. Professor O’Rourke referred to a letter of July 2013 from Dr Barnaby which referred to a history from the family of high alcohol intake but Dr Barnaby did not record any statement as direct evidence from him on this aspect. However, Dr Barnaby does conclude that with the veteran’s history of high alcohol intake that has been documented, alcoholic cardiomyopathy seemed to be the likely diagnosis on the balance of probabilities. He says that he had not recorded anything in his notes as to the alcohol intake or previous alcohol intake of the veteran but rather he noted from the Veterans Review Board’s commentary that there was a history of high alcohol intake.

16. Professor O’Rourke suggests that it is highly improbable that the applicant was drinking six to seven alcoholic beverages per day continuously during his period of less than one year on operational service overseas because he had to carry out his military duties and would not have been able to drink to the extent claimed. The veteran was not diagnosed with post-traumatic stress disorder. Professor O’Rourke did not consider that a period of eight months or so in Vietnam’s was a sufficient period to cause onset of cardiomyopathy or cardiac failure over 25 years later. He considered that Dr Nestel had based his opinion on information regarding alcohol consumption that is flawed and that could not be accepted. He said he saw no evidence in the documents furnished to him that he was drinking so much for so long as to qualify under the Statement of Principles.

17. Professor O’Rourke also observes that the veteran’s daughter was a child at the time and that there were some contradictions in the evidence as to drinking between that of the applicant and her daughter.

18. Also in evidence are some clinical notes from Dr Wong recording the treatment history of the applicant and in one of those notes dated October 2, 2009 there is a reference to “feeling depressed and unmotivated…tired…not sleeping…PTSD- flashback of Vietnam war”.

    REASONING

19. In this case the kind of death is cardiomyopathy. The evidence is sufficient to overall point to a hypothesis that the death was war caused and the question is whether the hypothesis is reasonable in the sense that it is not fanciful or remote.

20. I accept the evidence of the applicant and her daughter without any reservation. I do not think that they are contradictory such as to lessen in any way the force of their evidence as to the heavy alcohol intake of the veteran and the references to intense images of his horrific war service. The descriptions of his experiences in Vietnam’s are intense and vivid and are backed up by his objective behaviour such as the lack of sociability and extremely strange conduct of the applicant in many respects together with the evidence of strongly repressed intense periods of anger. There is evidence of his strong desire to disassociate himself with memories of his wartime service. Notwithstanding that he was not diagnosed with post-traumatic stress disorder the evidence indicates there were extremely strong stress factors which are consistent with a need or desire to suppress or erase the war memories which led to his self-medication by destructive heavy drinking as evidenced by the statements and oral evidence of the applicant and her daughter.

21. The hearsay evidence from the applicant is that the veteran apparently did not drink substantially before his war service but later developed a drinking habit to such an extent that by the time of Cyclone Tracy in 1974, a few years after his service, he engaged in behaviour consistent with a strong addiction to alcohol and on the figures presented as to the quantity of alcohol he consumed, which can at best only be approximate, he was an extremely heavy drinker.

22. Insofar as the respondent seeks to rely on the observations of Professor O’Rourke in relation to the lack of any notes by practitioners as to his alcohol consumption history, in my view, this can be attributed to the reticence and distrust on the part of the veteran towards the medical profession which would explain his reluctance to mention or give details as to his alcohol consumption history.

23. Having regard to all the evidence and records I am satisfied that the material is sufficient to support a conclusion that it is more likely than not that over at least one continuous period of at least five years or more prior to the diagnosis of dilated cardiomyopathy the veteran consumed more than 125 kg of alcohol and thereby satisfied the requirements of the statement of principles number 85 of 2015.

24. The Tribunal is satisfied on the evidence that there is a hypothesis that there is a connection between the cause of death of the veteran and the veterans war service pointed to by the material, and that the hypothesis is not untenable unreasonable or fanciful, and that it is consistent with the Statement of Principles. In these circumstances the claim of the applicant should be accepted.

    DECISION

25. The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war caused. The date of effect of this decision is 7 September 2013.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

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Associate

Dated 24 September 2015

Date(s) of hearing	13 July 2015, 1 September 2015
Counsel for the Applicant	Ms C Mudge
Solicitors for the Applicant	KCI Lawyers
Advocate for the Respondent	Mr T O'Reilly, Repatriation Commission