Robinson and REPATRIATION COMMISSION
[2010] AATA 617
•19 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 617
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4862
VETERANS' APPEALS DIVISION ) Re JAMES ROBINSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate19 August 2010
PlaceMelbourne
Decision The decision under review is set aside and in substitution it is decided the Applicant:
(a) suffers the conditions of hypertension, ischaemic heart disease, cerebrovascular accident and atrial fibrillation; and
(b) a connection exists on the balance of probabilities between service and the conditions.
The Tribunal remits the application to the Respondent for assessment of pension.
John Handley
Senior Member
VETERANS' ENTITLEMENTS ‑ Applicant engaged in eligible service for 15 months between 1942 and 1943 ‑ did not consume alcohol before enlistment ‑ commenced consumption subsequently until 1997 when he suffered a cerebrovascular accident ‑ stressful events in service ‑ Applicant continued to drink after discharge ‑ whether connection between service – alcohol – hypertension – ischemic heart disease – cerebrovascular accident - atrial fibrillation.
PRACTICE ‑ Duty of Respondent under model litigant policy and to assist Tribunal under s 33(1AA) of the AAT Act 1975 ‑ withdrawal by Respondent of concessions without notice ‑ failure to honour and adopt its Statement of Facts and Contentions ‑ failure to comprehend nature of Statement of Facts and Contentions ‑ conduct of Respondent unsatisfactory.
Administrative Appeals Tribunal Act 1975 (Cth) s 2A and s 33(1AA)
Veterans’ Entitlements Act 1986 (Cth) s 196B(3) and (14)Acts Interpretation Act 1901 (Cth) s 50
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Law (1981)147 CLR 635
Repatriation Commission v Cotton (2006) 93 ALD 118
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
19 August 2010 Mr John Handley, Senior Member
Dr Kerry Breen, Member1. Mr Robinson, the Applicant, is an 84 year old veteran who was engaged in eligible service with the Royal Australian Air Force (RAAF) between 20 April 1944 and 22 August 1945. Although he was engaged in the RAAF Reserve between his discharge in August 1945 and 14 May 1947, only the former period can be considered in this review.
2. The Applicant initially claimed acceptance of the conditions of Poor Hearing, Ischaemic Heart Disease and Cerebrovascular accident.
3. The Respondent evidently accepted sensorineural hearing loss as war-caused and granted pension at 30 per cent of the general rate but decided the appropriate diagnosis for the remaining conditions were atrial fibrillation and cerebral ischaemia. It decided those conditions were not war-caused.
4. The Veterans' Review Board (VRB) on 18 June 2008 decided to affirm the decisions to reject atrial fibrillation and cerebral ischaemia as war-caused. It also decided to vary the claim for ischaemic heart disease to heart block and affirm that decision.
5. By this application the Applicant seeks acceptance of one or more of the conditions of hypertension, cerebrovascular accident, ischaemic heart disease and atrial fibrillation. The Applicant submitted that he consumed alcohol which was attributable to service and which in turn was responsible for one or more of these conditions.
6. The Applicant argued that hypertension was war-caused. Despite it not being claimed at primary level, the connection between service and the claimed conditions could only be met, by the applicable Statements of Principals (SoPs), if hypertension was service related. This will be explained later in these reasons.
7. Each of the above conditions is the subject of SoPs which have been issued within the assessment period which commenced on 23 November 2006.
8. In summary, it was alleged that at all relevant times (as determined by the SoPs) the Applicant consumed at least 300 grams of alcohol per week and the clinical onset of hypertension was either in 1970 when his blood pressure was recorded at 220/110 or in 1979 when the clinical notes of Dr Rogers, his former general practitioner, recorded the prescription of Inderal which was changed later that year to Visken.
9. It was apparent to us, having observed the Applicant give his evidence, that he was frequently confused. It may be that he did not understand the questions put to him. It is very likely that he also did not hear the questions that were put to him. It was learnt during the hearing that he has refused to wear a hearing aid, despite a prior finding of 42.7 per cent binaural hearing loss. Mrs Robinson, the Applicant’s wife, recorded in a statement of 24 November 2009, that her husband has a deteriorating difficulty with memory, concentration and confusion. The Applicant said he was not confused and disagreed with the observations of his wife. In evidence, Mrs Robinson said her husband finds recalling events stressful. She also said his answers to questions may be inaccurate if he is confused.
10. Accordingly, findings of fact that we have made and which are recorded later, have had regard not only to the evidence of the Applicant but to the evidence of others and to a number of documents which were received in evidence and which will also be referred to in these reasons.
JAMES ROBINSON
11. The Applicant lived at home prior to enlistment and did not consume alcohol. (His pre‑enlistment medical report (T3, p 3) and a questionnaire (T7, p 3) records he did not consume alcohol prior to enlistment). He said his mother prohibited alcohol being present in the home. He was working as a clerk with AWA and was engaged in service as a gunner/wireless operator. After service he was employed by the Overseas Telecommunications Commission (OTC) and eventually became the Victorian Manager. He retired in 1988.
12. In 1997 he was admitted to a hospital in the United States when he was suddenly breathless and suffered chest pain. From a description given by his wife, he presented with the appearance of having suffered a cerebrovascular accident subsequent to an episode of atrial fibrillation. A pacemaker was inserted, he returned to Melbourne and was admitted to Warringal Hospital in Heidelberg. He was eventually discharged to the care of his general practitioner in Dromana and has remained under the care of doctors to the present time.
13. The Applicant lodged three statements prior to the commencement of the hearing, each of which refers to his commencement of alcohol consumption after enlistment. He confirmed in evidence that he did not drink before enlistment and was an accomplished athlete, participating in athletics, football and swimming. He was a Victorian junior sprinting champion and was training with the intention of becoming selected for the Australian Olympic Team.
14. The Applicant said he first consumed alcohol in Maryborough, Queensland, when it was made available to him by others. He said beer was obtained from an Officers’ Mess and was in kegs which were decanted into seven ounce glasses. He said he only drank alcohol because it was something to do and because he didn’t want to be left out. He said social life within service revolved around alcohol. Although one of his statements records him then consuming between four and eight, seven ounce glasses per day, in evidence he said that it would have been four, seven ounce glasses. He said alcohol was part of camp life for aircrew and it was a way of getting over problems. He said that there were frequent reports of plane crashes and life in service was very different to life at home. The Applicant confirmed the contents of a questionnaire he completed that he increased his alcohol consumption during service when he was promoted to the rank of Flight Sergeant (T7, p 36).
15. The Applicant said that there were two specific events which occurred in service which he described in his statement of 24 November 2009 as being traumatic or distressing incidents. They were events which were also identified in a history taken by Dr Seabridge, a consultant psychiatrist, who assessed the Applicant at the request of the Respondent. Those events were also recorded by the Applicant in claim forms (T7, p 32 and T10, p 48).
16. One of the incidents occurred when he was travelling in an Avro Anson aircraft in a training flight over Port Phillip Bay between Ballarat and Cape Schanck. He said (and recorded in his statement) that another wireless operator and two pilots were on board with him. The wireless operator was known to him as Dizzy Thomas. The Applicant said he does not recall the first name of that person and has had no association or contact with him since the day of the flight. He said in evidence that Dizzy Thomas was a rat bag. During the flight he observed Thomas stand up and open the door of the aircraft. The Applicant then believed that Thomas was going to jump out. The Applicant said he restrained Thomas and was able to close the door. The Applicant also recalled that he had been at risk of being pulled out of the plane by Thomas. He said he did not report the incident or record it because he was worried that should a report be made it would have affected his (Thomas’) future. The Applicant said he kept the incident to himself but was thereafter worried about it. He had been asked to locate his log book in an attempt to identify the flight, but it could not be found. The Applicant also acknowledged that he had read a report prepared by Writeway Research Services which recorded that their investigation of the alleged incident had failed to reveal any documents or any report of the episode.
17. The other event in service which the Applicant said was traumatic or distressing occurred during gun practice on a rifle range at the RAAF Base in Sale. The Applicant said he had completed his firing practice and was watching others when he observed a person walk behind mounds into which ammunition was fired. He said the person came the wrong way over and was trying to be smart. He estimated the person was approximately 100 yards away from him. He said he was sure that the person had been hit by bullets but he did not know if he had been killed. He said there was no funeral.
18. The Applicant was aware that a report was not located by Writeway of the second incident. The Applicant said that he has a clear recollection of the episode and he continues to think about it and the event involving Dizzy Thomas.
19. At discharge from service, the Applicant said, he was consuming between four and eight glasses of beer per day. He resumed athletic training and his alcohol consumption reduced to four or five, seven ounce glasses of beer over two or three days per week. He was seriously in training and said that he had been favoured to win a Stawell Gift.
20. In the 1950s, the Applicant said, he ceased athletics and increased alcohol consumption to four or five glasses of beer per day which he consumed at lunchtime, at night and on weekends. He said he continued to consume alcohol until he had his stroke in 1997. An alcohol questionnaire (T7, p 35) records cessation of alcohol, in 1998.
21. On 28 October 1974 the Applicant was assessed by the Shepherd Foundation. He said he was referred to the Shepherd Foundation by Government. In his statement of 3 March 2009, he recorded that he was referred by his employer for the purposes of a medical assessment for superannuation purposes. Nonetheless the notes from the Shepherd Foundation recorded the Applicant drinks several times a week, for over five years, reports having 5/6 drinks at any one time. Usually drinks beer. Never was a problem drinker. He is recorded as being overweight by 15 to 20 pounds. It was noted in evidence by reference to the T‑documents, that on enlistment he was 126 pounds, and at discharge he was found to be 149 pounds. The suggestion was put that his weight increased because of alcohol consumption during service.
22. The Applicant said his reference to several in the notes of the Shepherd Foundation, meant two or three occasions per week. He agreed that he was drinking five or six seven ounce glasses of beer at that frequency.
23. Approximately two weeks after the Applicant attended the Shepherd Foundation, he attended his then general practitioner Dr Rogers, who recorded on 11 November 1974 that he was consuming between six and eight glasses of beer per day and a diagnosis of diabetes was queried. The Applicant agreed he was consuming between six and eight glasses of beer per day at that time. He said he recalled that Dr Rogers was unhappy with the extent of his alcohol consumption and was also worried about the potential of diabetes.
24. The Applicant said he was employed by OTC for 22 years until his retirement in 1988. He was engaged as a manager and he had access to a bar where he frequently entertained persons and served alcohol.
25. He said he remembered seeing Dr Seabridge at the request of the Respondent and remembered talking to him about the Dizzy Thomas and the shooting episode at Sale. He said that the examination occurred some years after he had suffered his stroke and he was not then wearing hearing aids.
26. When the Applicant was referred to the report of Dr Seabridge, he said he did want his wife to accompany him during the assessment because that was her practice and he described her as my secretary. He said Dr Seabridge did not want to have his wife present. He also said that he would have told Dr Seabridge that he had never had any problem with excessive use of alcohol (T9, p 40) because that was his belief. He was also aware that Dr Seabridge recorded that he has never suffered from a stroke. The Applicant said he did not know whether he suffered a stroke or a heart attack. He said he did not know the difference.
27. In cross examination, the Applicant said he did not know whether beer was in short supply in Australia during the war but said it was not rationed whilst he was in the RAAF. He agreed there were some restrictions on consuming alcohol because of night flying but in re-examination, and when that question was clarified, he said he intended to say that he did not drink alcohol whilst he was flying at night.
28. When he was asked whether in fact he did drink four glasses of beer per day on a regular basis during service, it occurred to us that he was confused about the questions or his ability to recall because he then spoke about a number of matters totally unrelated to the question asked of him. He agreed that alcohol was part of his social life from the 1950s but – contrary to an answer to a question asked of him in examination-in-chief – he said that he did not drink daily during lunchtimes but only did so if he was invited and then spoke of invitations to have morning tea at Government House when he would then drink Carlsberg.
29. The Applicant said that he would not have told Dr Rogers that he drank between six and eight glasses of beer per day and said his consumption then would have only been a couple times per week. He said that he would always give Dr Rogers correct answers to questions asked of him. He said he was not a problem drinker and could go for a few times per week without a drink – could be months and then added especially if I had to pay for it. The Applicant disagreed with a comment made by his wife in her statement of 24 November 2009 that he had been confused since 1997 but did agree that it was difficult to remember details of events that occurred more than 60 years earlier.
30. During service, the Applicant said, he had been engaged in a number of flights and had maintained a log book but had been unable to locate it for the purposes of these proceedings. He said he did not make an entry in it concerning the episode with Dizzy Thomas and said that it would not have been appropriate to record it. He also said that he did not think that it was appropriate to report it to the pilots or to other persons. He was shown a copy of a photograph of an Avro Anson aircraft which was appended to the report of Writeway and agreed that the location of the door above the wing was the door opened by Thomas.
31. When asked to comment on the history taken by Dr Seabridge that he had not ever suffered anxiety or depression, the Applicant said I cut things out of my mind. The Applicant agreed that he was disappointed to have been retired in 1988 and described the experience as shocking. He also described being upset concerning the death of his first wife and her prior illness. He said a gynaecologist found a lump as big as a six month old baby and was very sad and depressed by her illness and her subsequent death. He agreed Dr Rogers did treat him for depression and anxiety and said it was because of my job – it was a big job but later added that his anxiety was not work related. He said he did discuss his anxieties with Dr Rogers because most people were interested. The Applicant added that he was not worried about his health after diabetes was diagnosed and said Dr Rogers was more worried than I was.
32. In re-examination the Applicant said he had at all times been honest with Dr Rogers, who he regarded as a good friend.
DOROTHY RUTH ROBINSON
33. Mrs Robinson is the wife of the Applicant. She married him in 1995. She previously played golf with the Applicant's former wife who died in 1991. She had met the Applicant on a number of occasions whilst his former wife was alive at golf club functions and was aware on those occasions that he drank Crown Lager.
34. Mrs Robinson married the Applicant after a courtship of approximately 12 months. She was aware that he had been consuming medication for hypertension which had been prescribed by Dr Rogers.
35. Mrs Robinson said, when she and the Applicant were in the United States in 1997, he suffered a stroke and was admitted to hospital. She said the doctors told her his heart went into fibrillation, in an irregular heart beat, and that's what caused the stroke (Transcript of 4 February 2010, p 40). She said that's why sometimes we don't know whether he had a heart attack or a stroke. She said a pacemaker was inserted after his heart returned to a regular rhythm.
36. Mrs Robinson said her husband does have a significant hearing loss and he refuses to wear hearing aids. She said he is also confused from time to time and referred to his evidence where he spoke of Bob Hawke being the Prime Minister when Harold Holt drowned.
37. In a statement dated on 24 November 2009, she confirmed her husband's difficulty with memory, concentration and confusion and referred also to the appointment with Dr Seabridge. She recorded:
Because I was aware that Jim was prone to become confused and forgetful I asked Dr Seabridge for permission to sit in with him during the examination. Dr Seabridge refused such permission and I'm angry with him for doing so.
38. In evidence she said it was her normal practice to always accompany her husband to his medical appointments and sit with him during consultation. She said her husband is not familiar with his medication and she usually notifies doctors of the tablets he is taking. She said the doctors also ask her questions from time to time but Dr Seabridge for some reason didn't seem to want me to go in. Which I thought was unusual. Additionally she said I'm his full time carer. When asked specifically so you wanted to go in? she said yes well sometimes Jim gets a bit confused or he forgets dates and things. And sometimes two heads are better than one (Transcript of 4 February 2010, p 43).
39. In cross-examination Mrs Robinson was referred to the report of Dr Seabridge of 2 December 2009 where he reported that she had waited outside the consulting room because she was confident that her husband was capable of providing a history. Mrs Robinson said yes I don't know where he would get that from because – that's obviously what he's presumed I gather.
40. Mrs Robinson said that from about 1995, when she first commenced courting Mr Robinson, he spoke on a number of occasions about the two episodes in service referred to earlier, namely, the incident flying from Ballarat and the incident at the Sale Base.
41. She said she asked her husband whether he reported the episode involving Dizzy Thomas and he said that he did not. She said she asked whether the person at the Sale Base was killed and he responded I don't remember if they had a funeral. Mrs Robinson said that both incidents continued to emerge from time to time in discussions, including discussions that he had with her son.
42. Mrs Robinson said that her husband is a truthful person and although he is confused from time to time she did not detect any confusion in his description of the events flying with Thomas or at the Sale Base.
43. Mrs Robinson was also aware that her husband did drink alcohol whilst he was employed despite the fact that she did not then know him. She said he spoke about his work from time to time, his access to available alcohol and his consumption of it during working hours.
COLIN SEABRIDGE
44. Dr Seabridge has been a consultant practising psychiatrist for 40 years. He examined the Applicant at the request of the Respondent on 30 January 2007 and provided a report on the following day (T10, p 39). He also provided a further report dated 5 February 2010 in response to some questions asked of him by an advocate of the Respondent in a letter dated 30 November 2009 (R7).
45. One of the many issues in this application was whether Mrs Robinson was prevented from accompanying her husband during the interview with Dr Seabridge. In his report of 31 January 2007, Dr Seabridge recorded that the Applicant's wife remained outside, as they felt Mr Robinson was capable of giving an adequate history.
46. In evidence, Dr Seabridge said that the Applicant's wife did not accompany him during the consultation. He said that it was his practice to introduce himself to patients who are waiting for him. When asked whether he recalled the occasion of the Applicant's consultation with him, he said, I believe that I asked them whether Mr Robinson was alright to be seen on his own, whether he could give an adequate history and I was told yes …. When asked whether he had any impression that the Applicant's wife wanted to accompany him, Dr Seabridge said absolutely none.
47. In cross-examination he was informed that Mrs Robinson had given evidence that her husband is easily confused, and she attends all appointments with him. He said they were freely given the opportunity to come in together and told me that it was not necessary (Transcript of 19 May 2010, p 15).
48. In answer to some questions from the Tribunal, Dr Seabridge acknowledged that he did not have a clear recollection of what he had said to the Applicant and his wife prior to the commencement of the consultation but preferred to rely on his usual practice of asking who is coming in? He said I have never discouraged anybody from coming into my waiting room.
49. Dr Seabridge was taken to his report and acknowledged that he recorded that the Applicant had told him that he had not ever been treated for hypertension and he had not ever suffered from a stroke. He acknowledged that he had assumed that the Applicant was mistaken in his reference to having suffered from a stroke, because in his opinion, he thought the Applicant had suffered from a myocardial infarct. He said he reached that conclusion when he learnt the Applicant had been short of breath and had a pacemaker inserted. He said he had presumed that the Applicant had intended to describe the event in the United States as having been a myocardial infarct because that's not an unusual thing for older people to do. He acknowledged the advice given to him during the hearing that the clinical notes from the treating doctors in the United States indicated that the Applicant had in fact suffered a stroke.
50. Dr Seabridge said that by reason of the fluidity of the Applicant's discussion with him he had to interrupt and specifically ask him about events in service which were the basis of his claim. He said the Applicant did tell him about an episode of a trainee airman jumping out of the plane, or trying to jump out of a plane and about the man that was shot on the range first, and then asked him about the episode with the aeroplane (Transcript, p 10).
51. Dr Seabridge reported that the Applicant did not have any significant cognitive impairment sufficient to detract from the usefulness of the history. He said the Applicant gave clear answers to questions that I asked him (Transcript, p 10).
52. In cross examination he reaffirmed his opinion that the Applicant did not exhibit any evidence of confusion or difficulty with comprehension or any clearly visible neurological effects as a result of the stroke. He did not know whether the Applicant had ever had an assessment of his neurological function nor did he ask whether such an assessment had ever been undertaken (Transcript, p 16). He said had he been aware that the Applicant had in fact suffered a stroke in the United States, he would not have modified his approach to the interview. He also said he did not undertake any formal testing of whether the Applicant suffered from cognitive disturbance and said he had no time to do so during the interview. He also added but I actually – and I was – this is a confession – I haven't done a formal cognitive assessment in 40 years (Transcript, p 29).
53. Dr Seabridge was challenged concerning his earlier evidence that the Applicant volunteered information concerning the two events in service. He said the Applicant gave a clear and spontaneous history of the events after he had been asked to describe that event (Transcript, p 16). He said the Applicant was more interested in talking about other things and when he described the events in service he did so in a light hearted way. He said that's the major piece of evidence as to whether or not an event has resulted in the development of traumatic memories (Transcript, p 17). In his second report, Dr Seabridge recorded:
… the ready volunteering of the information is contrary to the avoidant techniques generally employed by traumatised individuals, who choose to steer away from opening traumatic memories.
54. Dr Seabridge agreed that he did not conduct a formal mental state examination. In fact, he said that he had not ever conducted such an examination. He agreed that he did not ask any questions of the Applicant concerning his sleeping patterns or his diet or whether his weight was stable or whether events upset him. In order to determine whether a patient had a psychiatric condition, he said he would ask those sorts of questions when it's relevant. When challenged whether he considered questions of that type were relevant to determine whether a patient does have a psychiatric condition, he said:
…I was establishing whether Mr Robinson had post traumatic stress disorder or whether he fulfilled the criteria for an alcohol based disorder.
Later, when he was asked whether he understood why he was assessing the Applicant, he said:
…I'll put it another way and what I'm establishing whether or not he has been exposed to a severe stressor, because that's a primary requirement for alcohol to be accepted.
55. Thereafter, many questions were put to Dr Seabridge in an attempt to comprehend whether he understood the purpose of the examination. His responses extended to him being of the belief that the Applicant had made a claim for ischaemic heart disease. On the basis of that belief he understood he was required to determine whether the Applicant was exposed to a severe stressor, which would then cause him to determine whether the Applicant needed to satisfy a SoP with respect to alcohol abuse or dependence.
56. The responses by Dr Seabridge to the questions asked of him, and the information that he volunteered need not be summarised here but are well documented in the transcript. We were concerned whether he properly understood his role as a consultant psychiatrist charged with the responsibility of providing an objective medical opinion. At this stage however, we should record that when he was asked whether he had SoPs with him at the time of his examination, he said I have them in my head (Transcript, p 13). Later he said:
I make the point – the vast majority – this is only the second time I've ever appeared in the Tribunal against the veteran. My entire work revolves around establishing veterans' eligibility using the statements of principles and utilizing them in whatever way I possibly can for the veteran's benefit. I'm veteran friendly.
57. Dr Seabridge said that he could not say if he was aware whether the veteran was wearing hearing aids during the consultation. When he was informed that he had a hearing loss of 42.7 per cent, Dr Seabridge said that he did not ever have to raise his voice, he was not asked to repeat himself, the veteran had no difficulty understanding his questions and the extent of hearing loss suffered by the veteran doesn't apply to one on one conversation (Transcript p 14).
58. Dr Seabridge said that it doesn't matter whether he was aware at the time of interview that the veteran had suffered a stroke because if he’s cognitively in tact and capable of giving a lengthy detailed and clear history… He denied the veteran was confused in his description of having suffered a stroke. He thought that the Applicant had misused the word.
59. Dr Seabridge acknowledged that he obtained a history from the Applicant that he had not previously suffered depression. Subsequently, he read the clinical notes of Dr Rogers, which recorded that he had previously treated the Applicant for symptoms of anxiety and depression and was medicated for a number of years. Dr Seabridge said it doesn't alter my opinion. The medication was in low dosage and his symptoms were not serious. He acknowledged that he did not obtain any history from the Applicant of him having previously being anxious and depressed and having difficulty sleeping with early morning wakening and suffering nightmares. He was not aware that the notes of the Shepherd Foundation recorded the Applicant as being occasionally anxious and upset.
60. Dr Seabridge did not ask the Applicant any questions concerning the quantities of alcohol that he consumed because the Applicant informed him that he had no alcohol issues. He agreed that his clinical notes did not make any reference to alcohol consumption. He said the very successful employment history and his general clinical presentation was inconsistent with the Applicant having had alcohol issues. When he was notified that Dr Rogers had recorded in November 1974 that the Applicant was drinking between six and eight 7ounce glasses of beer per day, Dr Seabridge said that he did not regard that quantity as being excessive. He acknowledged that he was not aware that Dr Rogers had counselled the Applicant concerning his alcohol consumption.
61. In his second report Dr Seabridge stated, in the context of the notes of Dr Rogers of depressed mood and nightmares:
…it needs to be kept in mind that Mr Robinson was treated with a variety of drugs for his blood pressure and his gout and other medical conditions which may well have affected his mood state.
When he was asked to consider those comments he said that's interesting then, because then I must know that he is taking anti-hypertensive medication. When asked whether the comments contained within his report were advanced as the reason for any affect on the Applicant's mood, Dr Seabridge said no I'm suggesting them as possibilities. When asked whether he had evidence that medication for hypertension and gout did affect the Applicant, Dr Seabridge said he had none at all. I'm speculating (Transcript p 26).
62. Dr Seabridge was asked by the Tribunal whether he could identify any drug for the treatment of hypertension over the last 30 years that would affect a person's mood. He said he though that Propranolol could be mood affecting. He said it could make persons depressed. When asked whether he knew of any drugs used for gout that could affect mood, he said:
… no not that – not that I would be able to specify. I just put that in as a possibility for consideration, that's all, but it's actually got no relevance at all.
When asked whether he would like to have the comments he made concerning gout medication affecting his mood removed from his report, he said no I'm happy for it to stay there.
RESPONDENT’S CONDUCT
63. Prior to setting out the reasons for the decision that we have made in this review, we will at this stage record our disappointment with the conduct of the Respondent in these proceedings.
64. On the first day that this matter was listed for hearing there was considerable discussion concerning the case of the Applicant, namely whether he was able to establish on the balance of probabilities a connection between his service and his subsequent illness or injuries.
65. Having regard to the notes from Dr Rogers, it was apparent that the Applicant had previously been treated for hypertension. The departmental representative who appeared, conceded hypertension and that it existed prior to the cerebrovascular accident (stroke).
66. It followed from those concessions, and was agreed between counsel for the Applicant and the Respondent's representative that the only issue therefore remaining in contention was the connection between service and alcohol consumption. The Respondent conceded in its Statement of Facts and Contentions (at paragraph 4.5) that the requisite quantities of alcohol had been consumed. Its position was that the connection between consumption and service was temporal only.
67. The Applicant is elderly and infirm. It was intended to take his evidence by telephone but it was learnt that he is exhausted on most days by midday. The discussions referred to above concluded about midday and it was agreed that the Applicant would be incapable of giving evidence on that day. It was also agreed, by reason of the understanding between the parties, that the matter would proceed on the issue of the relationship between service and alcohol only and that the Applicant would provide a more comprehensive statement concerning his contention of an association between service and his alcohol consumption. It was agreed that such a statement would be lodged without any requirement to record the quantities consumed because quantities were unnecessary given the Respondent’s concession in its Statement of Facts and Contentions (refer earlier). The Respondent also conceded that the Applicant commenced alcohol consumption during his service (refer Respondent's Statement of Facts and Contentions at paragraph 4.5).
68. At a directions hearing subsequently, another statement of the Applicant was provided and agreement was reached that the hearing should be listed for resumption without delay. In acknowledgement also of the Applicant's infirmity, it was agreed that the hearing should be convened at a venue close to where he resides. Arrangements subsequently permitted the Tribunal to convene a hearing at RSL premises in Rosebud and the hearing resumed on 23 December 2009.
69. On that day a different representative of the Respondent appeared and it became obvious during preliminary discussions that the Respondent resiled from its concession concerning the quantities of alcohol consumed. No attention had been given to that by the Applicant's representative because it was understood from previous discussions that the Applicant would not be examined about the quantities of alcohol that he had consumed.
70. When counsel for the Applicant raised her concern by way of preliminary submission about the manner in which the Respondent intended to pursue the application, counsel for the Respondent, (the previous concessions having been drawn to his attention), submitted that the Statement of Facts and Contentions lodged by his client were not binding (Transcript of 23 December 2009, p 4).
71. We then attempted to have the Respondent's representative comprehend the effect of its withdrawal of a concession previously made and the consequence to the Applicant and his representatives of being required to present a case for which they were not prepared, having regard to the assumption previously made that the concessions made would be honoured.
72. It was then submitted again by the Respondent's representative:
. . .My understanding of statements of facts and contentions is that they’re not binding on either party, they are an indication of how the case will be conducted, but if the evidence turns it in a different direction, then in making the correct or preferable decision the tribunal has to have regard to it. That is simply my submission.
MR HANDLEY: Of course it does and my state of mind would be a lot more relaxed if you would concede, if you would acknowledge, that it was not until 20 to 11 this morning that you put the applicant on notice that this was a live issue.
MR PURCELL: Well, that goes – that’s common. That’s the background on which this application is being made. I mean that is just so obvious that it doesn’t bear statement, in my respectful submission.
We found the Respondent’s attitude then to be astonishing and we remain of that opinion.
73. A Respondent has a special duty in proceedings before this Tribunal to use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding (s 33(1AA) of the Administrative Appeals Tribunal Act 1975) (the AAT Act)). By withdrawing the concessions recorded in its Statement of Facts and Contentions, without notice, the Respondent could not be seen to have used its best endeavours to assist the Tribunal.
74. The Tribunal has the objective prescribed by the AAT Act of providing a mechanism for review that is fair, just, economical, informal and quick (s 2A of the AAT Act). The Tribunal cannot meet those objectives where the Respondent, as the decision maker, resiles from concessions that it made without notice and either dismisses or fails to understand the case management strategies of the Tribunal in directing parties to lodge Statement of Facts and Contentions prior to a hearing commencing.
75. Parties to proceedings in this Tribunal are entitled to rely on the Statement of Facts and Contentions lodged by the opposing party and prepare accordingly. It has often been recorded that the Tribunal will not allow a trial by ambush. Respondent's are government agencies who, rather than responding to proceedings in a combative manner should, consistent with s 33(1AA) and the Model Litigant Policy issued by the Attorney General within the Legal Practice Directions, conduct themselves consistently and fairly; in a manner where it can responsibly protect the public purse and avoid unnecessary costs by limiting the scope of legal proceedings without requiring the other party to prove facts (no less in this case where the Respondent made concessions).
76. As a result of the events at Rosebud on 23 December 2009 the matter could not conclude. Evidence was not heard from the Applicant because by the time the discussions concluded, it became increasingly obvious that concessions made with respect to the presence of hypertension would also no longer be conceded. We decided that the matter should be adjourned and re-listed where the Respondent should properly put the Applicant on notice concerning the case that he was required to meet. To do otherwise, would have been procedurally unfair to the Applicant, especially because he is a frail, elderly, diabetic man, who was forced to attend the RSL, wait for three hours and then be told he had to come back another day.
77. The Respondent subsequently confirmed by a letter to the Applicant's solicitors of 29 January 2010 that it no longer was prepared to concede that the clinical onset of hypertension was earlier than 1997.
78. We convened again in Rosebud on 4 February 2010 and did hear evidence from the Applicant. We subsequently convened in Melbourne on 19 May to hear medical evidence. There was insufficient time on that day to take closing submissions and we reconvened for that purpose on 21 May 2010.
79. If the Respondent had honoured the concessions that it made on 23 November 2009, the hearing could have concluded on 23 December 2009. It did not for the reasons given above and three further days were reserved for the completion of the hearing.
80. As we said at the outset of this discussion, the attitude of the Respondent was very disappointing. We have no reason to assume that the manner in which its case was conducted was anything more than an aberration. We trust in future applications that it will acknowledge and exercise the special responsibility that it has to veterans. In the event it considers itself not bound by concessions that it has made or by the contents of its Statement of Facts and Contentions. We would hope that the Respondent will put applicants and the Tribunal on notice well in advance of a hearing date, and provide sound reasons for doing so. An adequate opportunity will therefore be given to an applicant and his or her representative to meet the case that the Respondent intends to adopt.
CONCLUSION
81. Our reasons which follow will make findings of whether the Applicant suffered injuries, illnesses or diseases and if so whether there are applicable SoPs.
82. We are mindful that within the assessment period which commenced on 23 November 2006 there are a number of SoPs concerning each of the injuries, illnesses or diseases that the Applicant suffers and for which he attributes a relationship with his eligible war service. In the findings that will ultimately be made we will have regard to the decision of the Full Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321, Repatriation Commission v Keeley (2000) 98 FCR 108 and s 50 of the Acts Interpretation Act 1901(Cth), namely, if a SoP in force at the date of delivery of this decision does not support a connection between service and injury, illness or disease, on the balance of probabilities, the Applicant is entitled to rely on an accrued right under an earlier SoP within the assessment period in order to support the connection with service.
83. We are also mindful of the provisions of s 196B(3) and (14) of the Veterans’ Entitlements Act 1986 (“the Act”). Those provisions having a more prescriptive obligation for satisfying a connection between service and injury, illness or disease on the balance of probabilities than s 8 of the Act alone.
84. Section 196B(14) is disjunctively constructed and for the purposes of the analysis and findings which follow we note that the expression arose out of, or was attributable to (s 196B(14)(b)) was examined in the High Court decision of Roncevich v Repatriation Commission (2005) 222 CLR 115 where at [27] the majority of the Court decided that those words indicated an intention on the part of Parliament:
…to give defence caused a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
85. In Law v Repatriation Commission (1980) 29 ALR 64 Toohey J also considered the words arose out of or was attributable to and decided that those words should not be understood as if meaning caused by. His Honour had regard to the purpose of the Act and he decided that the expression arising out of requires a less proximate relationship to the injury. His Honour's decision was upheld by a Full Court of the Federal Court and ultimately by the High Court (Repatriation Commission v Law (1981)147 CLR 635).
86. Section 196B(14) has relevance, particularly in the present application where the Applicant said that he first consumed alcohol in service because it was something to do and because he didn't want to be left out. As recorded earlier the Applicant said that his social life within the army revolved around alcohol.
87. The Tribunal and the Federal Court has on many occasions examined an association between service and a veteran taking up cigarette smoking or alcohol. In the event of a finding, greater than temporal, associating something about the service causing the commencement of a smoking or alcohol habit, there would be a causal influence sufficient to find attribution with service and satisfying the provisions of the legislation (Repatriation Commission v Tuite (1993) 39 FCR 540).
88. We are prepared on the Applicant's evidence to make such a finding of attribution and therefore satisfaction of s 196B(14)(b) of the Act.
89. The Applicant did not drink before enlistment. As he described earlier (paragraph 11), alcohol was readily available and he consumed it. Consumption was part of the life of air crew members and was used to relieve the anxiety of reports of air crashes. The Applicant increased his consumption when he was promoted. However, the connection between service and the subsequent consumption of alcohol was substantially advanced by the Applicant’s exposure to two specific incidents in service, both of which we regard as significant and stressful, and as a fact, having occurred.
90. One of the incidents was restraining a colleague who had opened the door of an aircraft in flight and when the Applicant believed that his colleague was attempting to jump out. The other incident was observing a person on a rifle range at the Sale Base during firing practice.
91. The Applicant said that he did not report either incident. The Writeway agency engaged by the Respondent did not find any reports from any other persons of either incident. The Applicant said that the person who opened the door of the aircraft was known to him as Dizzy Thomas. He said that he has had no association with that person since that incident and did not record it because he feared that the future of Thomas, in service, would be affected. The Applicant said that he has been worried subsequently by that episode because although he successfully restrained Thomas from jumping, he was worried that he could have been pulled out of the plane by him.
92. The Applicant has given varying accounts of the episode at the rifle range at the Sale Base. In some documents he has recorded or in some reports he has explained to others that the person was killed. In other documents he said that the person had been shot but he did not know whether he had been killed.
93. As we have recorded, earlier the Applicant is a person who is frequently confused. It was obvious to us observing him in evidence that the manner in which he answered questions indicated either a degree of confusion or inability to concentrate or give a response appropriate to the question asked of him.
94. However, we do not find that the Applicant is a person who has invented these episodes nor do we find him to be untruthful. Neither of those two episodes in our view have been constructed or conceived for the purposes of these proceedings. That he has spoken of those episodes on a number of occasions with his stepson (refer evidence earlier of Mrs Robinson), indicates to us that they were events which did occur and which he continued to recall. As a fact we are satisfied that those events did occur and we are also satisfied that the Applicant reacted to them in a manner which caused him to find relief in alcohol or which, having regard to the nature of his service generally, contributed to him sustaining his alcohol habit.
95. The opinion expressed by Dr Seabridge that the Applicant was not traumatised by the episode of the Sale Base is noted but we dismiss it. Dr Seabridge reached that conclusion because when he asked the Applicant to describe that episode, the Applicant was recorded as having replied it was a point 5 so there wasn't much left.
96. In the absence of a neurological function test or a mental state examination, the response given by the Applicant to Dr Seabridge (refer paragraphs 52 and 54), in our opinion is consistent with some of the answers that he gave to questions when he was giving his evidence. We note also that Dr Seabridge was of the opinion that the Applicant did not suffer any significant cognitive impairment, a conclusion which we found surprising.
97. The Applicant has given varying accounts of the quantities of alcohol consumed subsequent to enlistment which is hardly surprising because he has been asked to recall the quantities that he consumed more than 65 years ago and subsequently. However, the amounts consumed, and the frequency of consumption is within a range which is relatively consistent, especially when allowance is made for the Applicant's personality as we observed and his poor memory.
98. In his statement of 3 March 2009, the Applicant recorded that he was drinking at least four, 7 ounce glasses of full strength beer on a daily basis and sometimes up to eight glasses per day at the time of his discharge. He did thereafter resume athletics and reduced his consumption of alcohol but he did not stop drinking.
99. In about 1950 he ceased athletics and his alcohol consumption increased. He was drinking four or five 7 ounce glasses of full strength beer at lunchtimes. On occasions he drank beer at home after work in quantities that he estimated at one or two 26 ounce bottles of full strength beer during the week. Additionally, having regard to his management position with OTC, he frequently entertained during working hours and attended social functions where he consumed alcohol.
100. On 11 November 1974, Dr Rogers recorded in the Applicant's clinical notes that he was drinking between six and eight glasses of beer per day. In the previous month, namely October 1974, the notes from the Shepherd Foundation record the Applicant as having 5-6 drinks at any one time. The Applicant said that Dr Rogers cautioned him concerning his alcohol consumption at the consultation in November 1974.
101. On balance we think that the contemporaneous history taken by Dr Rogers in November 1974 was accurate. There was no contemplation then of litigation and Dr Rogers had not then been treating him for hypertension. Medication for it was not prescribed until May 1979. He had also previously diagnosed the Applicant as suffering from angina and diabetes. The disclosure to Dr Rogers of a consumption of between six and eight glasses of beer per day in 1974 is consistent with the caution the Applicant said Dr Rogers gave him about his alcohol consumption.
Hypertension
102. In the assessment period there were two SoPs being Instruments No 4 of 2004 and No 12 of 2008.
103. Factor 5(b) in each SoP is reproduced as follows:
No 4 of 2004
(b) consuming an average of at least 300 grams per week of
alcohol for a continuous period of at least 6 months
immediately before the clinical onset of hypertension,
which cannot be decreased to less than an average of 300
grams per week of alcohol; or …
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; or…
104. Hypertension as defined means a permanently elevated blood pressure evidenced by usual blood pressure readings of either greater than or equal to 140 systolic or greater than or equal to 90 diastolic.
105. The first recording we can find of elevated blood pressure (apart from a recording at enlistment which for these purposes we would dismiss) was on 21 October 1970 when Dr Rogers recorded a blood pressure of 220/110. On 29 October 1970 the recording was 170/105 and on 12 November 1970 was 160/100. On 11 October 1974 it was found to be 150/100 at the examination at the Shepherd Foundation, 150/105 on 11 November 1974 (being the occasion when Dr Rogers recorded a consumption of between six and eight glasses of beer per day) and 160/110 on 9 December 1974.
106. We are satisfied that the Applicant did have a permanently elevated blood pressure where his usual blood pressure reading exceeded either 140 systolic or 90 diastolic.
107. We are satisfied that the clinical onset of hypertension was 21 October 1970 as evidenced by the blood pressure recording taken by Dr Rogers on that day. We are satisfied as a fact and find that the Applicant was at that date hypertensive and meets the definition within the two applicable SoPs operating within the assessment period namely, Instrument No 12 of 2008 currently in force or Instrument No 4 of 2004.
108. Each Instrument refers to consumption of an average quantity of alcohol. The word alcohol is defined in the Instruments as 10grams of alcohol per standard alcoholic drink.
109. A 10 ounce glass of full strength beer is the equivalent of 1 standard drink or 10 grams of alcohol (refer Commonwealth Department of Health and Aging website An average of 4.33 x 10 ounce glass of full strength beer per day or 6.2 x 7 ounce glasses of full strength beer will meet the 300 grams threshold.
110. Although Dr Rogers recorded a consumption of between six and eight glasses of beer in 1974, we are satisfied on the Applicant's evidence that he was consuming at least 6 x 7ounce glasses of full strength beer in the six month period immediately before 21 October 1970, especially when regard is had to beer being consumed at home. It follows that the Applicant cannot satisfy the hypertension instrument presently in force but can satisfy Instrument No 4 of 2004, subject to a bizarre requirement of that Instrument of the defined quantity of alcohol consumed immediately before the clinical onset of hypertension which cannot be decreased to less than an average of 300gms per week of alcohol.
111. Fortunately, that requirement is not found in the later Instrument, perhaps having regard to the criticism of that requirement by a number of Tribunal and Federal Court decisions no less than Repatriation Commission v Cotton (2006) 93 ALD 118. His Honour, Rares J decided (at [13‑28]) that factor 5(b) does not refer to concepts of alcohol abuse or alcohol dependency and the factor should not be interpreted as if it were meaning that the words cannot be decreased import a degree of compulsion or addiction. His Honour also recorded that if the expression was to be given a literal interpretation, absent a veteran being alcohol dependent or abusive of alcohol, no person would ever satisfy the factor. In his view it was sufficient only for a veteran to satisfy the minimum quantity of alcohol consumed in the defined period.
112. We are satisfied that the Applicant did consume at least 300grams of alcohol in the six month period immediately before the clinical onset of hypertension in 1970. We make that finding on the balance of probabilities. Having also been satisfied (refer earlier) that the consumption of alcohol arose out of or was attributable to service it follows at this stage that there is a sufficient connection between service and hypertension permitting us to also find that hypertension should be found to be war-caused.
Cerebrovascular Accident
113. The next contention of the Applicant was of his cerebrovascular accident (stroke) in 1997 having an association with service.
114. The Respondent conceded that the Applicant did suffer a stroke in 1997 when he was in the United States on the basis of the medical reports which were received during the currency of the hearing from the Kootenai Medical Centre in Idaho. The medical records reveal the discharge diagnosis as an embolic right occipital parietal infarction, atrial flutter with intra ventricular conduction delay and slow ventricular response, placement of a pacemaker and diabetes.
115. The expression right occipital parietal infarction refers to an area of the brain which has suffered an infarction and satisfies us that the Applicant did suffer a stroke. As a fact, we make that finding. The description of the stroke is also consistent with the definition of cerebrovascular accident in Instrument No 52 of 2006 being the only Instrument in force during the assessment period. Factor 6(c) applies and is reproduced as follows:
6(c)drinking an average of at least 300 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; or …
116. The Applicant said that he stopped drinking alcohol when he had his stroke in 1997. In an alcohol questionnaire completed by him (T7, p 34-35), he recorded that he had been drinking four standard drinks daily from 1944 until 1998 when he ceased on medical advice. We are satisfied that the reference to 1998 should in fact be a reference to 1997 when he suffered the stroke.
117. We note with some curiosity that the Applicant recorded in the questionnaire that he had been consuming four standard drinks daily. That is the only time throughout any of the documents before the Tribunal where the Applicant has referred to his consumption of alcohol as standard drinks. We note that the question asked of him is a reference to the number of standard drinks per day which are described as 10ounce glasses of full strength beer. We note also that the questionnaire records that a standard drink of 10ounces of full strength beer includes 10 grams of alcohol. The notation in the questionnaire is consistent with our findings at paragraph 109 earlier. The consumption of 4 standard drinks daily is slightly less than the minimum daily quantity of 4.33 (to equate to 300 grams of alcohol per week). However, we think allowance should be made for poor and inaccurate memory. The answers given should be treated with caution, his estimate is only 20 grams short of the weekly threshold and the beneficial objective of veterans' legislation should be preserved.
118. We are satisfied the Applicant continued to drink that quantity, at least, in the 12 months before the onset of the stroke.
119. An alternative factor upon which the Applicant may rely establishing a connection between service and a stroke is by him having hypertension at the time of the clinical onset of cerebrovascular accident (refer factor 6(a)).
120. In his statement of 25 January 2010, the Applicant said he had been taking medication for hypertension since May 1979 and has continued to the present time.
121. Unfortunately, there is a considerable gap in the clinical notes. The last entry in the notes of the Reservoir Medical Group is 23 March 1996 and the first entry in the notes of the Applicant's general practitioner in Dromana is September 1997, being three months after the Applicant returned to Australia from the United States. For some years prior to 23 March 1996, the notes of Dr Rogers record the blood pressure of 140/90, therefore satisfying the definition of hypertension.
122. We note that the Kootenai Medical Records contain many references to the Applicant being hypertensive (refer notes of 25 June 1997 where the Applicant had his blood pressure recorded at 176/90 with a comment then made by the clinician blood pressure is initially elevated but now a little bit better). On 24 June 1997 his blood pressure was recorded at 200/100 and on the same date the clinician recorded a history of mild hypertension. We are satisfied the Applicant was hypertensive at the clinical onset of the stroke.
123. We are satisfied that the Applicant meets both factors 6(a) and (c) of the SoP concerning cerebrovascular accident. It therefore follows on the balance of probabilities that a connection exists between the veteran's service and his cerebrovascular accident by reason of the alcohol consumption which we have previously found was connected with service or by the mechanism of hypertension which also had its origin, (at least for the purposes of the SoPs), in alcohol. As a fact, we are also satisfied the veteran did suffer a cerebrovascular accident.
Ischaemic Heart Disease
124. Ischaemic heart disease was also contended by the Applicant as having a connection with service.
125. Within the assessment period, there were two SoPs namely, Instruments No 54 of 2003 and No 90 of 2007. The only variation between the applicable factors in each Instrument is either having (2007 Instrument) or the presence of (2003 Instrument) hypertension before the clinical onset of ischaemic heart disease.
126. The word before in each Instrument suggests to us that hypertension need not be present at the occasion of clinical onset of ischaemic heart disease but rather at some time previously.
127. The Respondent contended in closing submissions that ischaemic heart disease should not be found as a fact because it was not specifically referred to in the medical records from the United States, nor was there a recent history of chest pain, angina and treatment for angina or shortness of breath.
128. Dr O'Ryan, the Applicant's treating cardiologist, gave evidence in these proceedings and provided a number of medical reports which were found in the T‑documents and which were obtained by the Applicant's solicitors. We found Dr O'Ryan to be well qualified and we are also satisfied that he gave evidence which we regarded as compelling and which we adopt.
129. He was satisfied that the finding in the United States of an atrial flutter/fibrillation which required the insertion of a pacemaker were the manifestations of ischaemic heart disease. He was also satisfied, having regard to the Applicant's age and multiple co-morbidities of hypertension, diabetes, obesity and gout that ischaemic heart disease would inevitably have been present.
130. We were also urged to find that ischaemic heart disease was not present because Dr O'Ryan did not specifically refer to the condition in the letters that he wrote to the Applicant's general practitioner. Dr O'Ryan agreed that a person could suffer ischaemic heart disease without a need for medication. We do not draw any adverse conclusion against Dr O’Ryan. He was reporting to the referring general practitioner. He was not giving an opinion on whether the Applicant satisfied a SoP.
131. The Respondent did not call any evidence from a suitably qualified cardiac physician and so far as is known, it did not obtain any opinion from a similarly qualified person.
132. Dr O'Ryan said that the atrial flutter experienced by the veteran was the manifestation of ischaemic heart disease. He said that he was 100% certain of that opinion (Transcript of 19 May 2010, p 49 ‑50).
133. In concluding this part, we are satisfied that the condition of ischaemic heart disease as diagnosed by Dr O'Ryan exists and is consistent with the definition found within each SoP.
134. We have found earlier that the clinical onset of hypertension was in 1970 and the Applicant subsequently suffered from it. It therefore follows that he was having or there was the presence of hypertension before the clinical onset of ischaemic heart disease. There was no evidence specifically of the clinical onset of ischaemic heart disease. However, it is our view that it may reasonably be found, on the probabilities as having had its clinical onset sometime after 1970 when hypertension was first diagnosed and 1997, when the Applicant was admitted for treatment in the United States.
135. In all of the circumstances, we are satisfied and find on the balance of probabilities that a connection exists between ischaemic heart disease and service by the link of alcohol and subsequent hypertension.
Atrial Fibrillation
136. By way of completion the only SoP in force with respect to atrial fibrillation is Instrument No 20 of 2003. We are satisfied as a fact that the condition of atrial fibrillation exists and is war-caused. We note that the Applicant presented for treatment in the United States with cardiac arrhythmias which required the insertion of a pacemaker. The clinical records of the Kootenai Medical Centre are consistent with the definition of atrial fibrillation found within Instrument No 20 of 2003.
137. The only relevant factor which may be considered in connecting service with atrial fibrillation is suffering from ischaemic heart disease at the time of clinical onset of atrial fibrillation (factor 5(b)).
138. For reasons given above, having been satisfied by the evidence of Dr O'Ryan that the atrial flutter was the manifestation of ischaemic heart disease, an opinion that he held with 100% certainty, we are satisfied that the Applicant suffered from ischaemic heart disease at the time of the clinical onset of atrial fibrillation.
139. It therefore follows that factor 5(b) is also satisfied.
140. In all of the circumstances we are satisfied, on the balance of probabilities that a connection exists either between the Applicant's service and cerebrovascular accident by the intervening links of alcohol consumption and hypertension, or a connection exists between service and atrial fibrillation by the intervening links of alcohol, hypertension and ischaemic heart disease.
141. It follows that the decision of the VRB under review in these proceedings should be set aside and in substitution there should be a finding that the Applicant suffers from war-caused hypertension, cerebrovascular accident, ischaemic heart disease and atrial fibrillation. The Tribunal remits the application to the Respondent for assessment of pension.
I certify that the one hundred and forty‑one [141] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member; and
Dr Kerry Breen, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 23 November and 23 December 2009; 4 February, 19 and 21 May 2010
Date of Decision 19 August 2010
Counsel for the Applicant Ms A. McMahon
Solicitor for the Applicant Ms U. Noye, Williams Winter Solicitors
Counsel for the Respondent Mr G. Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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