Curran and Repatriation Commission [2000] AATA 989 (14 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/453

VETERANS' APPEALS DIVISION )

Re Thora CURRAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date 14 November 2000

Place Sydney

Decision The Tribunal sets aside the decision of a delegate of the Repatriation Commission dated 23 February 1998, and in substitution decides that the death of John Curran was war caused, and that his widow, Thora Curran, is entitled to be paid war widow's pension on and from 10 December 1997.

..............................................

M T Lewis

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - war widow's pension - whether death of Veteran war-caused - Veteran died of liver failure and breast cancer - Statement of Principles applied - whether reasonable hypothesis raised - alcohol consumption relevant factor in SoP - whether consumed 80kg of alcohol over a period of 15 years within 20 years before clinical onset of malignant neoplasm of breast - whether drinking habit related to service - whether alcohol consumption contributed to cause of death

Veterans' Entitlements Act 1986 - ss 120(1), 120(3), 120A

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Cooke (1998) 90 FCR 307

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 23 February 1998 that determined that the death of John Curran ("the Veteran") was not related to his war service. That decision was affirmed by the Veterans' Review Board ("the VRB") on 15 February 1999. Thora Curran ("the Applicant"), as the widow of the Veteran, lodged an application for review by this Tribunal on 26 March 1999.

2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and Mr John Joseph Whitelock and Dr Aldous De Gabrielle gave telephone evidence at the hearing. Reports of Dr De Gabriele dated 7 August 1998 and 6 December 1999 (exhibit A) and a Statement of Mr Whitelock dated 30 April 1998 (exhibit B) were tendered as evidence on behalf of the Applicant. A report of Dr J Grygiel dated 27 February 2000 (exhibit 1) and clinical notes of Dr De Gabriele (exhibit 2) were tendered as evidence on behalf of the Respondent.

3. The Veteran was born on 30 March 1924. He served in the Australian Army from 27 April 1942 to 4 September 1946, including service in New Guinea, thus rendering operational service. The Veteran died on 9 December 1997 at the age of 73 years from carcinoma of right breast and metastatic disease of liver (T8). It was agreed between the parties that liver failure was the cause of death.

4. The standard of proof to be applied to the Veteran's operational service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986, 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 his 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 service.

5. The following hypotheses were raised by the Applicant -

* The Veteran developed an alcohol habit arising from his war service. His heavy drinking contributed materially to the development of malignant neoplasm of the breast that resulted in his death.

* The Veteran suffered from Post Traumatic Stress Disorder ("PTSD") arising from his war service that led to alcohol/drug dependence and ultimately to his death from malignant neoplasm of the breast.

* The Veteran suffered from drug dependence arising from his PTSD that had arisen from his war service, and the long-term ingestion of Serepax and Murelax contributed to his death through liver failure.

6. As the Applicant lodged her claim after 1 June 1994, pursuant to s 120A of the Act the Tribunal is required to apply the relevant Statement of Principles in determining this matter. Although at the time of the hearing the Full Federal Court had not determined the matter of Repatriation Commission v Keeley (2000) 98 FCR 108, the Full Court has since upheld the decision of the single judge. This allows an applicant to rely on his/her accrued right to have a matter, on review, determined by applying the Statement of Principles that was relevant at the time the primary decision was made. The Applicant in this case sought to rely on her accrued rights, and therefore the relevant Statements of Principles are -

* Malignant Neoplasm of the Breast - Instrument No.53 of 1997

* Psychoactive Substance Abuse or Dependence - Instrument No.5 of 1994.

* Post Traumatic Stress Disorder - Instrument No.15 of 1994, as amended by Instrument No.225 of 1995.

7. The Applicant relies on factor 5(d) of Instrument No.53 of 1997 for Malignant Neoplasm of the Breast, viz. -

Consuming at least 80 kg of alcohol (contained within alcoholic drinks) over a period of 15 years within the 20 years before the clinical onset of malignant neoplasm of the breast.

8. The Applicant relies on the following factors in Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence -

1 (a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or

(b) having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence.

9. The Tribunal is aware in respect of the Statements of Principles in relation to Post Traumatic Stress Disorder that the 1994 and 1995 Statements of Principles have since been revoked by Instrument No.3 of 1999, as amended by Instrument No.54 of 1999. It was the parties' view, and the Tribunal agrees, that in this matter the Applicant is not affected in any material way by the changes made to those Statements of Principles. That is, the outcome is the same despite the introduction of the phrase "severe stressor" in the more recent Statements of Principles which carries the same definition as that of "stressor" in the previous Statements of Principles.

evidence

Applicant

10. The Applicant met the Veteran in late 1946 and married him in 1951. She said that six weeks after they married she contracted poliomyelitis. She admitted that during the months she was recovering from that condition she was not at home and was not aware of "what was going on". Around that time the Applicant was aware that the Veteran had suffered from malaria and gall stones.

11. The Applicant did not know whether the Veteran drank alcohol before he went into the Army, although she did not think it was likely considering that his mother did not approve of drinking. She recalled however that the Veteran's father made and drank his own brew at home.

12. Before their marriage, the Applicant recalled the Veteran was intoxicated on occasions and at the time of their marriage and thereafter he drank alcohol every day at the hotel. Soon after their marriage they moved to Portland where the Veteran worked as a hairdresser. The Applicant recalled that until the 1970's the Veteran drank very heavily at the RSL Club - between 3 to 6 schooners of beer. She recalled that although the club closed at 6 pm, the Veteran continued to drink "behind closed doors" until he came home about 9 pm. This was his regular pattern throughout that period and apart from the time when he had tonsillitis over a period of a couple of years in the 1950's, he always came home late in the evenings.

13. Apart from his drinking, she recalled the Veteran experienced nightmares about 2 to 3 times a week although he denied having them. She recalled that he always took medication, but she understood that to be for his gall bladder condition. She said that the Veteran never discussed his war experiences with her.

14. After his hairdressing business closed about the 1970's, the Veteran worked at the Co-Op until the late 1970's. The Applicant recalled that when the Veteran finished work there at 5.30 pm he spent "all his time" at the RSL as he had also become one of the directors of the club. He came home only when the club closed. After he left the Co-Op the Veteran worked at the Portland golf club.

15. The Applicant said that early in their marriage the Veteran never drank at home, but as the years went on he drank beer at home. She recalled that the Veteran regularly drove home after drinking. She said that during their marriage the Veteran was a "fantastic man when he wasn't drinking" but he could get "nasty" when he drank alcohol. She said he yelled at her if she ever told him to stop drinking.

16. The Applicant recalled that the Veteran ceased his drinking habit while he was still working at the Portland golf club in about 1994 after receiving his doctor's advice that he would develop ulcers if he continued. She said the Veteran ceased working at the club in 1989. She said that in about 1994/1995 the Veteran "became a different man" - he was more "attentive" and was the "perfect husband". From mid 1950 to when the Veteran ceased drinking, the Applicant said the Veteran managed to "hold" his drink very well, although in the later part of that period she recalled that he staggered home whenever he had drunk too much.

17. The Tribunal notes that the Applicant completed an Alcohol Questionnaire on 17 December 1997, at which time she indicated the following -

* The cause of the Veteran's drinking habit was "not known" but she believed it developed as a "social habit".

* The Veteran commenced drinking during service at which time he consumed 3 drinks per day on average.

* In approximately 1948, the Veteran became a very heavy drinker and increased his drinking habit to 6 schooners per day due to "stress from war experiences".

* The Veteran ceased drinking in 1980 upon medical advice.

18. The Applicant said that the first time the Veteran became aware that he had breast cancer was in September 1997. She said that until then he never knew that he had a lump in his breast, nor did he tell her that he had known about it in the previous year.

Mr J J Whitelock

19. Mr Whitelock prepared a statement dated 30 April 1998 (exhibit B) in which he noted the following -

Jack Curran and his wife Thora came to Portland in 1951. I was introduced to them a few weeks after their arrival.

Jack and I became mates, going fishing and shooting together. On lots of those occasions, 50% of the time we would end up at the hotel where he would stay. Jack was a very heavy drinker. I drank very little. We both joined Lithgow Legacy and every month went to a meeting. After the meeting we went to the bar. Jack would drink six or eight schooners...before we left to come back to Portland. At Portland Jack insisted we go to the RSL Club before going home, where he would drink another six or seven schooners .... before we could go home. He never got drunk, it dulled his mind. He was never violent.

We worked together at the Portland Co-operative Society. Every afternoon after work he would go to the RSL, drinking and smoking, going home when the club closed. On numerous occasions he would report for work next morning only to be sent home to clear his head. Jack was a very heavy drinker..., he seemed to have something on his mind he didn't want to talk about.

About two years ago, Jack came down to my home and the doctor had told him to give up smoking and drinking or he would die. This he did,...

20. In oral evidence Mr Whitelock said that the Veteran was an experienced drinker by the time they met. Mr Whitelock recalled that while the Veteran owned the barber shop he spent time at the club during working hours "because every time anyone wanted a haircut they had to pull him out of the RSL" where he went to drink. He said it was also common for his wife to go to the club late at night and in the early hours of the morning to take the Veteran home.

21. Mr Whitelock said that he drank a few beers while he waited for the Veteran to finish work and that the Veteran drank about 6 to 8 schooners (maybe more) with him. Mr Whitelock said that he never saw the Veteran stagger as he was able to "hold" his alcohol well.

22. When the Veteran worked at the Co-op, Mr Whitelock said the Veteran did not drink during working hours but as soon as he finished he would go immediately to the RSL club. After the Veteran left the Co-op and became manager at the golf club, Mr Whitelock said he saw the Veteran about once or twice a week. He recalled that the Veteran was still drinking after he ceased work at the golf club. Mr Whitelock recalled that until the 1990's the Veteran drank until 2 or 3 am on Anzac Days but thereafter he stopped drinking on Anzac Day. He indicated that the Veteran gave up drinking in the 1990's after he had consulted a doctor. Mr Whitelock said that was probably the first time the Veteran ever sought medical assistance because he was a "tough man and if he was crook he just carried it".

23. Mr Whitelock said that the Veteran never discussed the war with him although "he seemed to have something worrying him all the time". He was aware that the Veteran took Amytal and that he complained quite often about being sick.

medical evidence

24. In a medical report dated 25 October 1954 prepared in relation to the Veteran's claim for tonsillitis(T6), it was noted that the Veteran's consumption of alcohol had been "negligible" over the previous six months. However, a War Pension Medical Report dated 3 May 1955 (T5) notes a history that the Veteran drank three to four schooners after work and three to four on Saturdays.

25. A barium meal performed in 1981 by Dr K R Neale, radiologist, demonstrated the presence of duodenal ulcers (exhibit 2, p13).

26. Dr L Fingleton, general surgeon, examined the Veteran and reported on 26 September 1997 (exhibit 2, p 47). He noted a history from the Veteran that he had a lump in his right breast for about twelve months that was slowly enlarging. The Veteran's two sisters and one brother had breast cancer. That history is consistent with the history recorded by Associate Professor J Grygiel, oncologist, in his report dated 3 October 1997 (exhibit 2, p54). Professor Grygiel also noted that an ultrasound of the liver was suggestive of liver metastasis despite liver function tests being "more or less normal". Dr Fingleton examined the Veteran again on 28 November 1997 (exhibit 2, p49), at which time he noted that the Veteran had severe jaundice.

27. Abdominal ultrasound on 24 September 1997 showed numerous masses throughout the liver which were presumed to represent metastatic deposits. There was no evidence of any intra-hepatic or extra-hepatic duct dilation. An ERCP procedure was performed by Dr B McGarity, physician, on 5 December 1997 (exhibit 2, p45). Dr McGarity concluded "I suspect the jaundice in large part relates to liver failure from secondary disease". Associate Professor Grygiel, oncologist, reported on 5 December 1997 (exhibit 2, p41) that he saw the Veteran immediately following this procedure. He reported that the Veteran was -

... severely jaundiced and had lost quite a lot of weight. His right breast cancer primary was smaller than when I first saw him in early October but his liver remained rock hard and unchanged. The ultrasound recently performed was not particularly confirmatory of deterioration in relation to the known liver metastasis but more that of obstruction.... He has just had his ERCP done when I saw him and it was impossible to tell whether that procedure had been successful and whether his obstruction had been overcome...

Dr A De Gabrielle

28. Dr De Gabrielle was the Veteran's general medical practitioner since about 1957 when he commenced practice in Portland. He prepared reports dated 7 August 1998 and 6 December 1999 (exhibit A) and gave oral evidence at the hearing.

29. Dr De Gabrielle diagnosed carcinoma of the right breast in September 1997, on a history that the Veteran had the lump in his right breast for one year. Dr De Gabriel noted that on further interrogation the Veteran admitted that it had been present possibly for two or three years and that his right breast had probably always been larger than the left. On that basis Dr De Gabrielle said that onset of the disease was in 1996 and possibly as early as 1993.

30. Dr De Gabrielle said he was closely involved in the Veteran's final hospitalisation when he was admitted with jaundice and extra-biliary obstruction. Liver secondaries from breast cancer were also suspected at that time. In his report of 7 August 1998 Dr De Gabrielle opined that the primary cause of the Veteran's death was carcinoma of the right breast and metastatic disease of the liver culminating in liver failure.

31. In his 1998 report (exhibit A) Dr De Gabrielle was of the opinion that the condition leading directly to the Veteran's death was metastatic disease of the liver which was due to his right breast cancer. He also considered the Veteran suffered from a co-existing liver toxicity resulting from the harmful effects of a combination of drugs including Serepax and Murelax. He noted that at an earlier point in his treatment the Veteran took Valium at night because he could not sleep. Subsequently this was substituted with Serepax and Murelax, used also to overcome tremulousness from alcohol withdrawal, as well as sleeplessness and anxiety. Dr De Gabrielle considered the latter were attributable to the stressors the Veteran suffered on service when he lived in fear of being bombed or captured by the Japanese. The Veteran also reported to Dr De Gabrielle that he could not sleep because he had recurrent nightmares and that alcohol consumption helped him to sleep. Dr De Gabrielle said that the Veteran then became dependent on Serepax by day as well as by night.

32. Dr De Gabrielle was of the view that the Veteran's liver had already been damaged prior to any affects caused by the secondaries from breast cancer. In his oral evidence he identified the proximate causes of death as obstruction to the flow of bile, and liver dysfunction. Although he was hesitant to quantify the causal contribution of those two factors, he attributed 50 percent to cancer and 50 percent to substance abuse.

33. Dr De Gabrielle admitted that no active treatment for the Veteran's liver condition was ever administered and that blood and liver function tests were performed from time to time which did not assist in diagnosing liver dysfunction. Dr De Gabrielle estimated that the Veteran would have taken on average 90 mgm of Oxazepam (Serepax and Murelax) during the previous 25 years. He noted that jaundice was reported on a number of occasions. The Tribunal notes that no record has been made of the Veteran suffering from jaundice in Dr De Gabrielle's clinical notes. However, Dr De Gabrielle explained that his clinical notes over many years were extremely brief or non-existent because he was a sole practitioner in a busy rural community.

34. Dr De Gabrielle provided the following drinking history with respect to the Veteran, in his report dated 6 December 1999 (exhibit A) -

...It was well known that, since the war years, round the clock drinking in Portland had been tolerated by the authorities; the phrase "closing time" for hotels in Portland would be a misnomer, as drinking would continue behind closed doors well into the night. ...in the late 1950's and early 1960's, while in residence at the Imperial Hotel, I remember Mr. John Curran as one of the late night patrons.

In 1957, when Mr. John Curran came under my care...it was clear that his drinking of alcohol had increased, within a few months of his discharge from the Army in September, 1946.

...

In the light of severe stressors in his war service, it would be logical to view the clinical onset of alcohol dependence as a gradual process beginning at the time of civilian life in 1946 when Mr. John Curran found three (3) drinks per day were effective in promoting sleep; within two years with, ready availability of alcohol, tolerance would lead to markedly increased amounts of alcohol to achieve the desired effect.

35. Dr De Gabrielle said he was of the view that the Veteran's drinking habit was war-caused not only because the Veteran suffered severe stressors but also because after the war he drank alcohol to deal with nightmares, flashbacks, anxiety and insomnia that were war-related.

36. Dr De Gabrielle said that from 1991 to 1994, whilst the Veteran was still working at the golf club, he attempted to persuade him on several occasions to stop drinking. However, no mention of that was made in his clinical notes. He said the Veteran did not revert to the same level of alcohol consumption that had existed prior to 1991, but he did not cease drinking totally until 1993. He believed that the Veteran was still drinking when he was working at the Portland golf club, although he may have stopped drinking for a period of time while he was working there. He observed from home visits that the Veteran continued to drink after his retirement. He assumed that ultimately the Veteran ceased drinking by "going cold turkey".

Associate Professor J Grygiel

37. Professor Grygiel provided an opinion regarding the Veteran's cause of death (exhibit 1), viz -

This patient had metastatic breast cancer established as a principal diagnosis when I first saw him and assumed his biliary obstruction evidence on the second and final consultation was related to his metastatic disease in his liver. I have never received a report regarding the findings on ERCP to alter my view that the biliary obstruction was anything other than his metastatic breast cancer progressing.

On both occasions that I saw Mr Curran, he had a firm, enlargement of the liver. He also had evidence on ultrasound examinations on two occasions that showed he had hypoechoic lesions in his liver which were most likely due to liver metastases from his primary breast cancer......As this man died a few days after my last consultation with him, I think that it is reasonable to assume with progressive metastatic breast cancer in his liver to conclude that breast cancer was the underlying cause of death...

...I have no quarrel with the notion that the breast cancer metastases were the cause of his death in this particular case but acknowledge that alcoholism may have been the contributing factor to his rapid decline.

submissions

Malignant Neoplasm of the Breast hypothesis

38. It was submitted for the Applicant that he satisfied factor 5(d) of the Statement of Principles concerning Malignant Neoplasm of the Breast, which required "consuming at least 80 kg of alcohol (contained within alcoholic drinks) over a period of 15 years within the 20 years before the clinical onset of malignant neoplasm of the breast". On the evidence of the Applicant's drinking habits from the 1970's to the 1990's, it was submitted that the Applicant consumed approximately 1500 drinks over a year (6 drinks a day over 5 days a week).

39. It was submitted that the clinical onset of the Veteran's alcohol dependence was from the end of the war. Various witnesses provided differing opinions on the dates of commencement and cessation of the Veteran's drinking habit. However, it was submitted that the evidence clearly pointed to a gap of less than five years between the cessation of drinking and clinical onset of the breast cancer, and that the Tribunal could not be satisfied beyond reasonable doubt that the gap was longer.

40. It was submitted for the Applicant that the only issue to be determined was whether the Veteran's drinking habit was related to his service. The Applicant contended that the Veteran commenced drinking during the course of his Army service in New Guinea and that the connection to service was immediate and firmer than just a habit that was "picked up" in the course of his service. It was also contended that such a connection existed in a contributory sense, even on the balance of probabilities. It was submitted that the Veteran consumed alcohol as medication for bad nightmares and insomnia that were service-related.

41. The Respondent conceded that the Veteran probably consumed 80 kilograms of alcohol within 20 years of the clinical onset of his breast cancer, but whether or not he had done so over a period of 15 years within the 20 years before the clinical onset was doubted. The Tribunal was referred to the decision Re Robertson and Repatriation Commission (1998) 50 ALD 668 as authority for the proposition that the clinical onset of the Veteran's breast cancer was when he first became aware of the symptoms. This was two or three years before he presented with the symptoms to Dr De Gabrielle in 1997. The Respondent in effect agreed with this approach.

Alcohol/Drug Dependence/Abuse and Post Traumatic Stress Disorder Hypothesis

42. With regard to whether the Veteran's substance dependence (both alcohol and tranquillisers) contributed to his death, it was submitted for the Applicant that factors 1(a) and 1(b) of Instrument No.5 of 1994 were satisfied. The onset of the Veteran's alcohol dependence was 1951 and the onset of his use of tranquillisers was 1957. It was submitted that the Tribunal was able to conclude that there was a reasonable hypothesis that the Veteran turned to alcohol in a dependent way as soon as he was discharged from the Army. Consequently, the hypothesis met the Statement of Principles and has not been dispelled beyond reasonable doubt.

43. In the alternative, it was submitted for the Applicant that, if the Tribunal found the Veteran did not meet the definition of "alcohol dependence", he still satisfied the definition of "alcohol abuse".

44. It was submitted that even when considered on the balance of probabilities, the Veteran's dependence on tranquillisers contributed to his liver failure.

45. It was conceded for the Respondent that the Veteran had suffered a severe stressor on service and that alcohol dependence had been established on the evidence. The issue was the date of clinical onset of that condition. It was submitted for the Respondent that the clinical onset of alcohol dependence was some time later than 1954 on the basis that in 1954 the Veteran gave a history of negligible ingestion of alcohol in the previous six months (T6). The Applicant's Counsel submitted that the records to which the Respondent referred in determining the date of onset would not cause the Tribunal to be satisfied beyond reasonable doubt that alcohol dependence had not commenced from the end of the war.

46. It was conceded for the Respondent that the Veteran's alcohol consumption contributed to his liver failure. However, it was submitted that his substance abuse was not related to his service because a diagnosis of PTSD had not been established on the evidence, and the Veteran did not experience a severe stressor within 2 years before the clinical onset of alcohol and/or drug dependence/abuse. This meant that neither factor 1(a) nor 1(b) of Instrument No.5 of 1994 were satisfied.

consideration of evidence and findings of fact

47. The Tribunal is reasonably satisfied that on the medical evidence, which is uncontroverted, that the primary cause of the Veteran's death was carcinoma of the right breast, notwithstanding that he suffered from liver failure prior to his death. The Tribunal finds that although it is possible that death was contributed to by liver failure caused by long-term ingestion of tranquillisers, that has not been proved to the Tribunal's reasonable satisfaction: Repatriation Commission v Cooke (1998) 90 FCR 307.

48. The Tribunal finds that the clinical onset of the Veteran's breast cancer was 1994 or 1995, that being the time the Veteran admitted to Dr De Gabrielle that he first became aware of his symptoms: Re Robertson (supra).

49. In determining whether the Veteran's death was causally related to service in accordance with s120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-8) viz. -

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

50. The Tribunal finds that the material before it raises an hypothesis in the following terms -

* the Veteran acquired a drinking habit due to stressful events during his war service;

* he suffered from nightmares and insomnia, arising from his service, after discharge from the Army, and used alcohol as self-medication;

* his heavy drinking commenced, on the evidence of Dr De Gabrielle, within a few months of his discharge from service and continued until about 1993;

* his high consumption of alcohol contributed to the development of carcinoma of the breast which ultimately caused his death.

51. The Tribunal finds that the Applicant's hypothesis meets factor 5(d) of Instrument No.53 of 1997 for Malignant Neoplasm of the Breast. The Respondent has conceded, and properly so, that the Veteran probably consumed 80 kg of alcohol within the 20 years before the clinical onset of his condition. The question for the Respondent is whether that quantity was consumed over a period of 15 years within the 20 years before the clinical onset of the Veteran's condition. The evidence of Dr De Gabrielle, Mr Whitelock and the Applicant, when taken together, points to the fact that the Veteran consumed the requisite quantity over a period of 15 years within the 20 years before the clinical onset of his breast cancer in 1994 or 1995.

52. The hypothesis raised meets factor 1(a) in Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence. The Veteran had a stressful war service, on the evidence of Dr De Gabrielle. The Tribunal considers that this points to there having been one or more "stressful events" as defined in the Statement of Principles, viz.

"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.

The Veteran served in New Guinea during the war. From the service documents it appears that he served in New Guinea at least from March 1944 to December 1945. The Tribunal has no evidence about the nature of his service in New Guinea and therefore has to rely on the evidence of Dr De Gabrielle who appears to have more relevant information than anyone else about the Veteran's service and his suffering after his service. In the absence of other evidence, the Tribunal also relies on its own general knowledge from working in this jurisdiction about the general stressful conditions of service in New Guinea during that period.

53. In considering the evidence of Dr De Gabrielle and the Applicant, an hypothesis has been raised that the Veteran commenced drinking heavily and regularly soon after his discharge from the Army, in order to deal with that stress. Consequently he developed and maintained a pattern of alcohol abuse.

54. Doing the best we can with the evidence at hand, the Tribunal finds that the Veteran ceased drinking in the early 1990s, probably 1993, which equates to an interval of less than five years between the cessation of alcohol abuse and the clinical onset of breast cancer in 1994 or 1955. Notwithstanding the inexact evidence on this issue, the five year interval noted in factor 5(d) is still satisfied.

55. The Tribunal finds that a reasonable hypothesis has been raised, and pursuant to s120(1) it cannot be satisfied beyond reasonable doubt that the Veteran's death was not war-caused.

56. Having found that the Applicant meets factor 1(a) of the Psychoactive Substance Dependence and Abuse Statement of Principles, the Tribunal does not propose to consider the alternative hypothesis in respect of factor 1(b). This, in terms of the Statement of Principles in relation to Post Traumatic Stress Disorder, is considerably harder to meet because of the specific nature of the Instrument, the passage of time and the lack of evidence available.

57. The decision under review is set aside and in substitution therefore, the Tribunal decides that the Veteran's death was war-caused and that war widow pension be granted to the Applicant. All applications for review were in time. Therefore, the earliest effective date for payment of pension to the Applicant is 10 December 1997, being the day after the Veteran's death.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

Dr M E C Thorpe, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 23 March 2000

Date of Decision 14 November 2000

Counsel for the Applicant Mr M.Smith

Solicitor for the Applicant S.Lurie, Dibbs Crowther & Osborne

Counsel for the Respondent N/A

Solicitor for the Respondent Mr P.Godwin, Dept. of Veterans' Affairs