Riordan and Repatriation Commission - [2002] AATA 960

DECISION AND REASONS FOR DECISION [2002] AATA 960

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/335
VETERANS'     APPEALS      DIVISION
  Re:         LORRAINE FRANCES RIORDAN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             22 October 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decisions under review in respect of hypertension and vertebrobasilar ischaemia, and substitutes a decision that hypertension suffered by the veteran is war-caused with effect from 20 August 1998, and vertebrobasilar ischaemia suffered by the veteran is war-caused with effect from 8 December 1999. Pension is payable at 70 per cent of the general rate.
In all other respects the Tribunal affirms the decisions under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - hypertension - vertebrobasilar ischaemia - fighter pilot - excessive consumption of alcohol - date of clinical onset - whether war-caused - assessment of rate of pension
Veterans' Entitlements Act 1986 ss8, 119, 120(1), 120(3), 120(4), 120A(3), 126
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

22 October 2002 G.D. Friedman, Member

This is an application by Lorraine Frances Riordan (the applicant), widow of Kevin Francis Riordan (the veteran), for review of two decisions of the Veterans' Review Board (VRB) dated 24 January 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 15 April 1999 to refuse a claim by the veteran that hypertension, atrial fibrillation, post traumatic stress disorder and alcohol abuse were war-caused. The VRB affirmed a decision of a delegate of the respondent dated 5 May 2000 to refuse a claim by the veteran that vertebrobasilar ischaemia was war-caused. The VRB affirmed a decision of a delegate of the respondent dated 20 August 1998 to assess the rate of pension payable to the veteran at 40 per cent of the general rate for the accepted conditions of bilateral sensorineural hearing loss and tinnitus of the left ear.
At the hearing of this matter on 10 October 2002 Mr G. Moore of counsel represented the applicant. The respondent was not represented due to industrial action at the Department of Veterans' Affairs.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with six exhibits (Exhibit A1-A6) lodged by the applicant and one exhibit (Exhibit R1) which was admitted into evidence on behalf of the respondent.
BACKGROUND
The veteran was born on 10 November 1921 in Shepparton, Victoria. He attended school at Xavier College in Melbourne until the age of 15 years, when he was required to work in the family's shoe store in Shepparton. On 7 November 1941 he enlisted in the Royal Australian Air Force (the RAAF) and trained as a pilot. Between March 1943 and April 1945 he was attached to the Royal Air Force in England and flew Spitfire aircraft on 125 missions in Europe. He was demobilised on 2 August 1945. The veteran's period of service constitutes operational service in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act).
After his discharge from the RAAF the veteran returned to the family business, which he operated until his retirement in 1996. In 1975 the veteran was treated for hypertension and was found to have vertebrobasilar ischaemia. In 1980 he was diagnosed with atrial fibrillation and in 1983 he was hospitalised with paralysis and symptoms of Guillain-Barre. In 1995 he underwent surgery for liver disease. On 20 November 1998 the veteran applied for disability pension. In December 2001 he suffered a mild stroke. He died on 3 June 2002 from a cranial haemorrhage.
Under s126 of the Act the applicant was authorised to continue the application which the veteran lodged with the Tribunal on 27 March 2001. At the hearing Mr Moore informed the Tribunal that the applicant intended to continue only with the application in relation to the conditions of hypertension and vertebrobasilar ischaemia, and she abandoned the application in relation to the remaining conditions.
EVIDENCE
The applicant gave oral evidence and told the Tribunal that she met the veteran in 1945 on his return from World War 2. She stated that at that time he was a heavy drinker, and she estimated his daily consumption of alcohol at 12 glasses of beer. They married on 18 April 1949 and had four children. The applicant said that he moderated his consumption in later years after surgery involving his liver. She stated that the veteran was conscientious about his work, and his drinking did not appear to affect his ability to manage the family business.
The applicant said that the veteran did not willingly seek medical advice at any time. However, she recalled one occasion, in about 1947, when the veteran attended the local general practitioner (Dr J. Kennedy) and on his return told her that he had been diagnosed with hypertension, which he understood to mean a lack of moral fibre. She said that when he was told that the condition referred to high blood pressure he joked about his misunderstanding. She said that apart from occasional reference to his mistake there was no further discussion about the condition and no prescribed medication or treatment until 1975.
In relation to the stroke suffered by the veteran in 2001, the applicant stated that he had a fall at home and afterwards she noticed that his speech was slurred and his mobility and memory were impaired moderately, and he relied on the use of aids such as lists and diaries.
In an alcohol questionnaire completed by the veteran on 28 October 1998 he stated that he commenced consuming alcohol on a regular basis on 10 November 1942 because he had pledged to refrain from alcohol until he reached the age of 21. In the questionnaire the veteran estimated his daily consumption at 12 glasses of beer and said that this level had not changed significantly.
In a written report dated 7 February 2002 (Exhibit R1) Dr L. Walton, consultant psychiatrist, stated:
…
While this veteran's introduction to alcohol occurred in reasonably normal social circumstances, the celebration of his 21st birthday, promptly he developed a pattern of excessive consumption and I have no difficulty at all with the proposition that this was then driven by his ongoing exposure to stressful events and the not unreasonable belief that his life was likely to be very short indeed.
In a written report dated 7 February 2000 Dr I. Parkin, consultant psychiatrist, stated:
…He started drinking in the RAAF and as is legendary of Spitfire pilots there was a lot of heavy drinking. He "knew he was going to die" and the stress of his missions was a major factor in him drinking as heavily as he did.
In respect of hypertension, in a written report dated 16 October 2000 Dr M. Rosenbaum, cardiologist, stated:
…
In 1948 the Veteran was found to have high blood pressure. It would appear that intermittently elevated blood pressure was defined from that time onwards, usually by Dr John Kennedy of Shepparton. In 1975 treatment was commenced by Dr Roger Key of Shepparton.
In a written report dated 29 January 2002 Professor R. Harper, consultant and intervention cardiologist, stated in relation to the date of clinical onset of hypertension:
…
This is a difficult question to answer. According to the service reports, Mr Riordan did not have hypertension at the time of his service. He does however give a very clear history of having been told that his blood pressure was high by his then local doctor, Dr Kennedy, in 1947. No treatment was initiated then, but it should be remembered that only limited treatment was available at that time and generally reserved for severe cases of hypertension. Mr Riordan said that he cannot recall his blood pressure being taken after 1947 until [the] 1970s.
…
Thus, I feel confident that Mr Riordan did have hypertension in 1975 as stated by Dr Key and he may well have had hypertension for many years before that, perhaps even since 1947, if one relies on the comment of Dr Kennedy. …
In a diagnostic report for hypertension dated 9 December 1998 (Exhibit A1, page 72) Dr J. Key stated in relation to the date of clinical onset:
…
1975 on our history. Patient was told he had high blood pressure in 1947 by Dr John Kennedy.

In addition to the high level of blood pressure recorded in 1975, clinical notes prepared by Dr Key show high readings continuing into the 1980s and 1990s.

In a written report dated 26 September 2001 (Exhibit A2) Professor K. Myers, consultant surgeon, stated:
…
He states that hypertension was first diagnosed in 1946 although there are no lasting records for his treating physician of the time is deceased. He had no specialist referral at that time.
…
[I]t is probable that he has suffered from longstanding hypertension, initially treated by dietary measures only and later by medications.
…
I consider that a substantial case can be made for stress during and after the period of war service being a major factor predisposing to the development of hypertension.

CONSIDERATION OF THE ISSUES

The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force.
Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis; that is to say, the hypothesis is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.
Mr Moore submitted that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is therefore a reasonable hypothesis. He referred to the alcohol questionnaire completed by the veteran and said that the level of alcohol consumption estimated by him at 12 glasses per day was supported by the evidence of the applicant and was not contradicted. Mr Moore referred to the document Assessment of alcohol intake (Exhibit A6) compiled by the Department of Veterans' Affairs which defines 200 gm/week as equivalent to 20 standard drinks per week, or 3 standard drinks per day. He said that the level of alcohol consumption by the veteran was sufficient to meet the criteria in the relevant SoP for hypertension.
In relation to the date of clinical onset of hypertension, Mr Moore referred to the evidence from the applicant, concerning her recollection of conversations with the veteran about his diagnosis of hypertension by Dr Kennedy in 1947. He also noted that the veteran was consistent in relating this to various medical practitioners. Mr Moore said that the reference in the clinical notes to hypertension in 1975 was consistent with the conclusion that this was the first occasion on which the veteran had consulted Dr Key. Mr Moore noted that the high levels of blood pressure recorded in the 1980s and 1990s supported the view that the veteran had a longstanding history of hypertension. In applying the facts, Mr Moore said that there was overwhelming evidence that because of the stressful and life-threatening nature of the veteran's duties as a fighter pilot, involved in contact with the enemy, there was a causal link with high alcohol consumption and hypertension.
On the question of vertebrobasilar ischaemia Mr Moore submitted that if the Tribunal accepted the condition of hypertension then the veteran would satisfy the SoP for cerebrovascular accident, as that condition occurred as a consequence of hypertension.
On the question of assessment of the rate of pension Mr Moore submitted that the appropriate rating would be: sensorineural hearing loss (16 points), tinnitus (5 points), hypertension (2 points) and cerebrovascular accident (25 points), giving a combined impairment of 41 points, which would be rounded down to 40 points, which equates to 70 per cent of the general rate.
In its Statement of Facts and Contentions, received by the Tribunal on 21 June 2002, the respondent submitted that in relation to hypertension suffered by the veteran, the date of clinical onset was 1975. The respondent relied on the clinical notes of Dr Key that refer to treatment at that time. The respondent submitted that there is no documentation or other evidence to support the applicant's claim that Dr Kennedy diagnosed hypertension in 1947. The respondent submitted further that there is no evidence that in 1975 the veteran suffered from alcohol dependence or abuse. In relation to vertebrobasilar ischaemia the respondent submitted that the veteran did not satisfy any of the factors in the relevant SoP because hypertension was not attributable to war service, and alcohol consumption had been reduced significantly at the time of the cerebrovascular accident.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, the veteran suffered from hypertension and vertebrobasilar ischaemia. Based on the documentation and the evidence by the applicant, the Tribunal finds that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the veteran.
In respect of the second step, the Tribunal finds that SoP Nº 31 of 2001 concerning hypertension and Nº 52 of 1999 concerning cerebrovascular accident (in relation to vertebrobasilar ischaemia) were in force and are relevant.
In respect of the third step, the Tribunal notes that factor 5(b) of SoP Nº 31 of 2001 concerning hypertension states:
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;

Paragraph 8 of the SoP states that alcohol (contained within alcoholic drinks) is measured by the alcohol consumption calculations utilising the Australian standard of 10 grams of alcohol per standard alcoholic drink.

The Tribunal finds that the applicant was a truthful witness who answered questions relating to events that occurred more than fifty years ago to the best of her recollection, and that her evidence of conversations with the veteran about a diagnosis of hypertension by Dr Kennedy in 1947 was plausible. The Tribunal also accepts the accounts given by the veteran to various medical practitioners that support this evidence, despite the lack of documentary records from Dr Kennedy. The Tribunal accepts the submission by Mr Moore that the reference to hypertension in the clinical notes dated 1975 is likely to have been recorded because that is the date the veteran was examined, rather than the date of clinical onset. In all the circumstances, and taking into account s119 of the Act concerning the effects of the passage of time and the absence of relevant official records, together with the pattern of high blood pressure recorded for the veteran from the 1970s, the Tribunal finds that the clinical onset of hypertension was 1947.
Taking into account the evidence by the applicant, the alcohol questionnaire prepared by the veteran and other references by medical practitioners to alcohol consumption, the Tribunal finds that at the relevant time the veteran consumed an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension. Therefore, the veteran suffered from alcohol dependence or abuse and satisfies factor 5(b) of the SoP concerning hypertension. As a result, the applicant satisfies the third step.
In respect of the fourth step concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, and where the Tribunal is called upon to make findings of facts, the Tribunal finds that the veteran served in World War 2 as a fighter pilot in life-threatening operations involving contact with the enemy. The Tribunal accepts the submission by Mr Moore that there is persuasive evidence that there is a causal link between the stresses of the veteran's war service and alcohol consumption leading to hypertension.
For these reasons, and in the absence of any matter establishing beyond reasonable doubt that there is no sufficient ground for determining that the condition of hypertension was war-caused, the Tribunal finds that the fourth step is satisfied and death from the condition was war-caused in accordance with s8 of the Act.
Factor 5(a) of SoP Nº 52 of 1999 concerning cerebrovascular accident states:
The presence of hypertension before the clinical onset of cerebrovascular accident;

In view of its findings in relation to hypertension the Tribunal finds that hypertension was present before the onset of cerebrovascular accident. Therefore, the veteran satisfies factor 5(a) of the SoP. As a result, the applicant satisfies the third step. For the same reasons, the Tribunal finds that the fourth step is satisfied and death from cerebrovascular accident was war-caused in accordance with s8 of the Act.

In relation to assessment, the Tribunal has considered all relevant material and finds that the appropriate assessment, using the Guide to the Assessment of Rates of Veterans' Pensions (fifth edition) (GARP V), is: sensorineural hearing loss (16 points), tinnitus (5 points), hypertension (2 points) and cerebrovascular accident (25 points), giving a combined impairment of 41 points, rounded down to 40 points, which equates to pension at 70 per cent of the general rate.
DECISION
The Tribunal sets aside the decisions under review in respect of hypertension and vertebrobasilar ischaemia, and substitutes a decision that hypertension suffered by the veteran is war-caused with effect from 20 August 1998, and vertebrobasilar ischaemia suffered by the veteran is war-caused with effect from 8 December 1999. Pension is payable at 70 per cent of the general rate. In all other respects the Tribunal affirms the decisions under review.
I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  10 October 2002
Date of decision:  22 October 2002
Counsel for applicant:                Mr G. Moore
Solicitor for applicant:                  De Marchi & Associates
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs