Stevens and Repatriation Commission - [2001] AATA 460

DECISION AND REASONS FOR DECISION [2001] AATA 460

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1174

VETERANS' APPEALS DIVISION       )
           Re      Thelma May STEVENS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 May 2001
PlaceSydney

Decision      The Tribunal sets aside the decision of the Repatriation Commission dated 4 September 1996, and in substitution therefor determines that the death of Edward Stevens was war-caused and that war widow's pension is payable to Thelma May Stevens on and from 5 May 1996.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war-widows' pension – veteran died of alcohol-related liver disease - no relevant Statement of Principles - whether reasonable hypothesis that Veteran's alcohol consumption was causally related to his war service – whether reasonable hypothesis dispelled beyond reasonable doubt

Bey v Repatriation Commission (1997) 79 FCR 364;
East v Repatriation Commission (1987) 16 FCR 517.

Veterans' Entitlements Act 1986: ss120(1), 120(3)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 September 1996 that determined that the death of Edward Stevens ("the Veteran") was not related to his war service. The decision was affirmed by the Veterans' Review Board ("the VRB") on 24 June 1999. Thelma May Stevens ("the Applicant"), as widow of the Veteran, lodged an application for review by this Tribunal on 3 August 1999.
The Tribunal had before it documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and Statements dated 29 October 1999 (exhibit A) and 28 April 2000 (exhibit B). A Statement of Albert Charlton dated 12 April 2000 (exhibit C), reports of Dr R Gertler, psychiatrist, dated 16 November 1999 and 1 November 2000 (exhibit D) and a facsimile transmission from the Department of Veterans' Affairs to the Applicant's solicitors (exhibit E) were tendered as evidence on behalf of the Applicant. A report of Dr G Marinos dated 17 January 2000 (exhibit 1) and a report of Dr A P McClure dated 10 May 2000 (exhibit 2) were tendered as evidence on behalf of the Respondent.
The Veteran was born on 5 September 1921. He served in the Royal Australian Air Force from 25 May 1942 to 12 February 1946. Because he served in New Guinea, the whole of his service constituted operational service for the purposes of the Veterans' Entitlement Act 1986 ("the Act"). The Veteran died on 29 October 1989 at the age of 68 years from fulminant liver failure.
The standard of proof to be applied to the Veterans' operational service is found in ss120(1) and 120(3) of the Act, which requires the Tribunal to determine that his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his war-service.
The hypothesis pursued by the Applicant was that the death of the Veteran was casually related to his service because the condition that caused his death arose from his heavy alcohol consumption, which in turn was caused by or contributed to by his operational service.
As the Applicant lodged her claim after 1 June 1994, pursuant to s120A of the Act the Tribunal is required to apply the relevant Statement of Principles in determining this matter. However, in this case, no relevant Statement of Principles has been issued by the Repatriation Medical Authority, nor have there been any relevant determinations or declarations under the Act. Therefore the matter is to be determined without reference to a Statement of Principles.
evidence
The Applicant
The Applicant met the Veteran in June 1942 and they married on 11 May 1946. Her evidence was that the Veteran's mother, father and sister had told her that he did not drink prior to his enlistment in May 1942.
When the Applicant met the Veteran he was stationed at the Lithgow Air Force Camp. He was drinking at this time but she could not estimate the quantity. When he returned from the war he was drinking enough to make his speech slurred and to be unsteady on his feet. He and his mates would always drink whatever alcohol they had purchased even if they were already affected by their earlier consumption. The Applicant recalled that the Veteran's drinking problem was evident to her even before they married.
The Applicant recalled that the reason she knew the Veteran drank during the war was because he would often tell her about how they used to make and drink alcohol using potato peel and traded the remaining brew to the Americans for rum and beer.
The Applicant said that after, and due to, a habit developed during his service, the Veteran became a heavy drinker of alcohol. She described him as a "consistent and very heavy drinker since his return from service in 1946 and leading up to 1950 when he joined the RSL Club at Lithgow" (exhibit A). He would drink two to three glasses of wine every night with his father. Every second weekend the Veteran and the Applicant would visit friends and each night after dinner, the Veteran and his male friend would visit the local pub and drink beer for several hours. Each time they would return home with lemonade bottles they had filled with beer whilst at the pub so that they could continue drinking at home. When they returned home they would also drink a couple of bottles of wine. The Applicant recalled on many occasions when she asked the Veteran to go to the local store he and his friend would return each time "as full as bulls (exhibit A).
In her evidence to the VRB the Applicant said that after the Veteran left the RAAF they lived with his parents until 1947, and the Veteran did not drink much during that period. His drinking increased when they moved to Lithgow in late 1947, but he did not drink much between 1947 and 1950. He joined the RSL Club and from 1950 he played bowls and tennis. His drinking "really started then". He drank when he came home from work and at weekends. He would go out at lunch time and would return home at 8.30pm, drunk.
The Applicant said she tried to warn the Veteran on many occasions to cease drinking alcohol due to the affect it was having on him, but such warnings only made his moods worse, sometimes to the point of violence. The Veteran would often drink to the point where she could not reason with him. He would insist on driving although he could barely stand, and would become very angry with whom ever tried to take him home. At another point in her evidence, however, she said she used to drive home when he was drunk even though she did not have a licence. She said the Veteran never tried to cease drinking despite the effects it was having on his social and family life.
The Applicant recalled that the Veteran would often have nightmares that continued throughout his life, but he would never tell her about their content. After the war the Veteran hated the Japanese and refused to have anything in the house made by the Japanese. He would not look at war movies. He would become apprehensive about at the approach of Anzac Day. He refused to go shooting rabbits with other family members. He lost interest in sport and did not seem to have any close friends after the war.
The Applicant recalled that the Veteran was an irritable man who often had outbursts of anger, he experienced difficulty in concentrating and as the years went on he became more and more withdrawn.
The Tribunal notes that the Applicant completed an Alcohol Questionnaire on 5 March 1990 (T8), in which she said the Veterans' drinking habit developed as a "social habit" before his service, and he would consume on average "2 middies" of beer per day. However in her oral evidence to the Tribunal she said this was incorrect and the Veteran commenced drinking while on service when he was stationed at Lithgow. She also said in the questionnaire that the Veteran's drinking did not change during or after service and that he never ceased drinking alcohol. She told the VRB that she had completed the questionnaire soon after the Veteran's death and that she was embarrassed to reveal the facts about his heavy drinking. Her evidence to the Tribunal was that at the time she completed the questionnaire she did not understand the importance of the information about the Veteran's drinking.
At the hearing the Applicant stated that the Veteran continued to drink from the time of his discharge until his death. She said that over the years his drinking gradually increased. She admitted that one child died in 1965 and another in 1969, and this was "a hell of a shock". In cross-examination she could not recall whether the Veteran's drinking increased at the time of the deaths. She said that his father was killed in a pedestrian accident in the 1970s after which his drinking slowly increased. However, the Applicant avoided making an association between his increased drinking and these family deaths. This evidence was given by the Applicant during cross-examination in relation to the evidence she gave to the VRB on the issue of whether the Veteran's drinking increased after these deaths (T30, p87).
The Applicant completed another Alcohol Questionnaire on 30 September 1996 (T21), at which time she said the Veteran started drinking alcohol because "everyone drank in airforce", he "drank more heavily o/s in Islands. Told me about making alcohol out of potato peels etc.". His drinking habit changed after his service, and the reason for the change was "anxiety and stress". She also said the Veteran was drinking less over the last two years of his life when he stopped playing bowls. However, when he stopped playing bowls he would go to the club once or twice a week and drank heavily. She said the Veteran did not ever stop drinking alcohol but he did not drink every day during the last three or four weeks of his life because he was too ill. She also said in the questionnaire that during most of his life following his war service he would drink at least 8 to 10 middies per day, but later on he would drink 10 to 12 schooners several times per week.
Albert Charlton
Mr Charlton, in his statement (exhibit C), said he served with the Veteran in the Air Force in Melbourne and Bougainville, when they were both part of 7 Airfield Construction Unit.
Mr Charlton recalled many stressful experiences he and the Veteran suffered during service, which he said were frightening and "made us fear for our lives". He said the night they arrived at Milne Bay the Japanese bombed their camp, killing several army officers who were camped across the road from the Veteran and Mr Charlton. Later they moved to Goodenough Island to build airstrips and roads. An airstrip on which they worked that was nearing completion was bombed by the Japanese one night, and bombings then continued almost nightly. He recalled one night watching a movie "under the stars" when suddenly the Japanese bombed the camp "and did quite a bit of damage to our tent, garage and workshop". Later in their service they landed at Aitape only to find Japanese "all over the place still shooting around us as we landed". They also witnessed American troops destroying hospitals and killing patients.
medical evidence
Dr G Marinos
Dr Marinos, a consultant gastroenterologist and hepatologist, provided a report regarding the Veteran's cause of death (exhibit 1), in which he opined that the Veteran died of rapidly progressive liver failure, the cause of which was consistent with alcohol-related liver disease. He noted that chronic excessive alcohol ingestion can lead to acute and chronic liver disease. Dr Marinos also said –
Mr Stevens' clinical presentation of a gentleman who has been drinking heavily for many years presenting with jaundice, fever, an enlarged, tender liver, ascites and severe abnormalities of coagulation is most consistent with severe alcoholic hepatitis. This clinical diagnosis is supported by the deranged liver function test results, disproportionate elevation of gamma GT and neutrophilia.
Although alcoholic hepatitis can lead to liver scarring and cirrhosis, and very frequently occurs in alcoholics who already have cirrhosis of the liver, there is no evidence that Mr Stevens had cirrhosis of the liver at the time of his death. …
… Mr Stevens was certainly a heavy drinker, who began drinking soon after leaving the service. His alcohol consumption steadily increased and by the late 1960s he would drink daily. Mrs Stevens also states that her husband had continued to drink up to his death. Thus it is most probable that exceptionally heavy alcohol consumption may have precipitated acute decompensated alcoholic hepatitis, which lead (sic) to his death.
In summary, although there appears no doubt that alcohol was a major contributing cause to Mr Stevens' death in that he had advanced alcohol-related liver disease, the exact cause of the acute hepatic decompensation (liver failure) is not clear from the notes. However, I suspect that as he drank heavily up until his death it was at least in part due to excessive continued drinking.

Dr R Gertler

Dr Gertler, a consultant psychiatrist, provided a report dated 16 November 1999 (exhibit D) in which he said:
"In my opinion, Mr Stevens was subjected to stressors during his service, those stressors being associated with the episodes of bombing to which he was subjected, which were in themselves life-threatening. In order to cope with those stresses Mr Stevens appears to have begun drinking alcohol to excess, and to have become dependent on the alcohol as a means of coping with that stress.
As such, it is my opinion that a reasonable hypothesis can be made that Mr Stevens' alcohol consumption was war caused. His war-caused psychiatric condition was most likely severe anxiety, however may have involved other features consistent with a diagnosis of post traumatic stress disorder, those features however not having been made public by Mr Stevens.

Dr A P McClure

Dr McClure, consultant psychiatrist, provided a report dated 10 May 2000 (exhibit 2). Although Dr McClure agreed with Dr Gertler that the Veteran undoubtedly at least suffered from alcohol abuse, he did not consider this was war caused. Dr McClure said:
It seems that Mr Stevens' alcohol intake, moderate when he left the service, slowly accelerated over the years. His service may have been stressful, but – other than his sleep disturbance (and this may be secondary to alcohol abuse per se) – nothing in the history given by his widow suggests an established Post-traumatic Stress Disorder which could be correlated with his Alcohol Abuse. As his Alcohol Abuse started at least two years after his discharge from the RAAF, and progressed slowly over the years, I conclude that this problem was not specifically service related."
Dr Gertler disagreed with Dr McClure's opinion. In his report dated 1 November 2000 (exhibit D), Dr Gertler opined that the Veteran's service was extremely stress provoking. He also disagreed that the Veteran did not suffer from an established post traumatic stress disorder, arguing that the stresses to which he was subjected were life-threatening. He noted that the Veteran coped with those stresses by drinking alcohol to excess, he was subject to sleep disturbance with apparent nightmares when he returned from service, and his general social withdrawal and avoidance of events and objects which reminded him of his service, were all indicative of post traumatic stress disorder symptomatology.
Dr Gertler stated that following discharge from service the Veteran's drinking continued to be excessive and increased in quantity over subsequent years. In coming to this conclusion Dr Gertler disagreed with Dr McClure's opinion that the Veteran's alcohol intake was only "moderate" after he was discharged from service. Dr Gertler reiterated that in his opinion the Veteran's alcohol intake was already excessive and indicative of abuse, if not dependence. The Veteran drank in excess of 40 grams of alcohol on weekdays and a far greater amount on weekends. He also tried to hide his drinking.
submissions
The parties agreed that the Applicant did not need to establish the Veteran suffered from alcohol dependence or abuse within the terms of the relevant Statement of Principles, but need only show that his alcohol consumption was causally related to his war service (exhibit E).
It was submitted for the Applicant that as a result of the stresses of service, the Veteran developed a drinking habit that led to the development of fulminant liver failure and subsequently to his death. The Veteran had a stressful service in New Guinea. The threat of death was always imminent. The Veteran did not drink prior to enlistment in 1942 and was a heavy drinker from the end of his service in 1946 until his death.
It was submitted for the Applicant that, after considering the evidence before it, the Tribunal would have no difficulty in being satisfied that there was no gap in the Veteran's drinking between the cessation of service and about 1950. Living in the house with his "basically non-drinking family" put some restraint on the Veteran's drinking between 1945 and 1947. It was conceded the constraint was lifted in 1947 when the Veteran and his wife moved to Canberra. However the evidence is that although he commenced drinking heavily in 1950, there was no time when he was not a heavy drinker. It was submitted that the Veteran learned to drink on service and continued thereafter right to the time of his death.
It was submitted for the Respondent that the death of the Veteran was not casually related to his service as his alcohol consumption was not caused or contributed to by his operational service. It was submitted that the Applicant's hypothesis falls apart because there is a break in the level of alcohol that the Veteran consumed. That was an essential element of the hypothesis - his alcohol consumption was a learned behaviour on service and it continued after service. It was submitted that if the learned behaviour was so easily curtailed after service when the Veteran lived in his parents' home until 1947, then any war-caused drinking habit was short lived. The Applicant was the only person who had given evidence about that period. The Respondent was prepared to accept the evidence of the Applicant that from 1950 onwards the Veteran was drinking heavily because that part of her evidence has been consistent throughout the history of this matter. However, because of the inconsistent evidence about the Veteran's drinking after 1947 the Respondent was not prepared to accept that evidence without corroboration. It was submitted that without that corroborative evidence it couldn't be said that there was material that pointed to the hypothesis and therefore, pursuant to s120(3) of the Act, no reasonable hypothesis was raised. It was also submitted that issues of credibility were separate from any consideration of whether a reasonable hypothesis was raised or whether it was disproved beyond reasonable doubt. It was submitted that the evidence needed to point to the hypothesis; it was not enough that the evidence did not contradict the hypothesis. If there are no facts pointing to the hypothesis, then the hypothesis is not raised: Bey v Repatriation Commission (1997) 79 FCR 364; Eastv Repatriation Commission (1987) 16 FCR 517.

The Applicant submitted in reply that the hypothesis raised by the evidence was in effect that the Veteran did not drink before service and he commenced heavy drinking on service. Notwithstanding the gap, it was submitted the hypothesis was still there to draw a link between the commencement of the learned behaviour and the consequences of his drinking.
consideration of evidence and findings of fact
There are several elements to the raised hypothesis. Firstly, the Veteran suffered a stressful service and he commenced drinking on service. Secondly, by the time he returned from service in New Guinea he consumed alcohol to the point where he had slurred speech and unsteady gait. Thirdly, he continued to drink from the time of his discharge from the RAAF and over the years his drinking gradually increased to a point where it became heavy by 1950. . Finally, although his drinking reduced a little in the last two years of his life he was still drinking large amounts of alcohol on most days. His death was caused by an alcohol related liver condition.
The Tribunal notes the agreement of the parties that the condition of alcohol dependence or alcohol abuse does not need to be established in this case. The issue is in respect of heavy alcohol consumption. The Tribunal considers this concession to have been properly made. Hence, the Statement of Principles in respect of Psychoactive Substance Abuse or Dependence does not need to be applied. There is no Statement of Principles in respect of the cause of the Veteran's death being from liver failure. On the evidence of Dr Marinos, the Veteran's liver failure was not associated with any of the conditions for which there is a Statement of Principles where liver failure could have been a consequence.
The Respondent raised concerns about the inconsistencies in the Applicant's evidence to the Tribunal when considered against the information she provided in Alcohol Questionnaires that were completed on her behalf, particularly on the issue of the Veteran's drinking between 1946 and 1950. The Respondent submitted that this evidence should not be accepted by the Tribunal as credible. It was conceded for the Applicant that if the Tribunal finds the attack on the Applicant's credit such that it would find that no reliance could be placed on her evidence then that would leave the Tribunal with no doubt that there was a gap sufficient to render the hypothesis unreasonable.
The Tribunal finds the evidence of Dr Marinos and Dr Gertler helpful in raising an hypothesis of the connection between the Veteran's death and the circumstances of his war service.
Taking account of the submissions made for the Respondent, the Tribunal is concerned about the suggestion that issues of credit are to be considered separate from the tasks associated with s120(1) and (3) of the Act. The Tribunal's understanding of its task is that the truth of a raised fact is not part of the consideration of whether a reasonable hypothesis has been raised pursuant to s120(3). The issue at this stage is, merely, whether on the basis of the raised facts the hypothesis is reasonable.
In taking into account the evidence before it, the Tribunal finds that a reasonable hypothesis has been raised pursuant to s120(3). Therefore, in moving now to s120(1), the Tribunal must find that the Veteran's death was war-caused unless, in effect, the reasonable hypothesis has been dispelled beyond reasonable doubt. It is only at this point that the truth of the raised facts is considered and indeed where issues of a witness's credit may become relevant, and the standard of proof to be applied in coming to that decision is the reverse criminal standard.
The Applicant's credibility is at issue. She was not an impressive witness, and obviously she has not been committed at all times to full disclosure about the Veteran's drinking. The Tribunal is obviously prepared to put greater reliance on the evidence of a witness if he or she has demonstrated a fundamental commitment to being truthful. It is important that representatives of service organisations assist applicants to understand the importance of being truthful in the responses they make when completing forms relevant to a claim. However the Tribunal understands the need felt by a recent widow to be loyal to her deceased husband by not making a statement that might be perceived as critical of him. On the evidence of the Applicant to the VRB, that is precisely why she made an inaccurate statement in her 1996 alcohol questionnaire.
The Tribunal is concerned about the credibility of the Applicant in the light of her inconsistent evidence. However, there is uncontroverted evidence that the Veteran had a very stressful war service. The evidence of Mr Charlton was helpful in establishing that, particularly given the lack of information that the Applicant had about the Veteran's war service. There was no need to establish that the Veteran drank consistently and heavily from the time of his discharge from the RAAF in order for there to be a causal connection between his later drinking and his war service. Dr Gertler raised that evidence, and Dr McClure, while disagreeing with it, did not disprove it beyond reasonable doubt. Certainly there is evidence of family catastrophes in 1965, 1969 and in the 1970s, that could well have contributed to the Veteran increasing his drinking. That merely adds another factor, on top of the hypothesised war-caused drinking problem. The Respondent does not take issue with that part of the hypothesis that indicated that the Veteran commenced drinking on service because of his conditions of service.
On the evidence before the Tribunal, it cannot be satisfied beyond reasonable doubt that the Veteran's death was not war-caused. Therefore, the Tribunal will set aside the decision under review and in substitution determine that the death of the Veteran was war-caused, and that war widows' pension is payable to the Applicant on and from 5 May 1996, being a date no earlier than three months before her claim for pension, the subject of this review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 and 8 November 2000
Date of Decision  29 May 2001
Counsel for the Applicant        Mr C A Vindin
Solicitor for the Applicant         Ms S Mashman, Dibbs Crowther & Osborne
Solicitor for the Respondent    Ms M Doggett, Dept. of Veterans' Affairs