Snell and Repatriation Commission [2003] AATA 96 (31 January 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 96

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1571

VETERANS' APPEALS DIVISION

Re: NITA SNELL

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Associate Professor J.H. Maynard, Member

Date: 31 January 2003

Place: Melbourne

Decision: The Tribunal sets aside the decision under review and in its stead decides that the death of the veteran, Mr J. Snell, was war-caused and the applicant is entitled to a war widow's pension on and from 13 December 2000.

(sgd) B.H. Pascoe

Senior Member

VETERANS' AFFAIRS - whether death of veteran war-caused - renal failure caused by hypertension - whether suffered from alcohol dependence - date of clinical onset or clinical worsening of alcohol dependence - whether within two years of experiencing severe stressor

Veterans' Entitlements Act 1986

REASONS FOR DECISION

31 January 2003 Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Associate Professor J.H. Maynard, Member

1. This is an application to review a decision of the Veterans' Review Board (VRB) which, on 10 October 2001, affirmed a decision of the respondent of 11 April 2001 that the death of the applicant's husband was not war-caused.

2. At the hearing the applicant, Mrs N. Snell, was represented by Mr A. Larkin, of counsel, and the respondent by Ms R. Casamento, an advocate with the Department of Veterans' Affairs. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, the following documents were tendered:

Letter from Dr J. Erenbots, general practitioner,

dated 30 September 2002 Exhibit A1

Statement by Mrs Snell dated 8 October 2002 Exhibit A2

Statement by Mr R.A. Mason dated 19 November 2002 Exhibit A3

Report by Dr B. Collins, forensic pathologist,

dated 21 February 2002 Exhibit A4

Transcript VRB hearing 10 December 2001 Exhibit R1

Clinical notes of Dr J. Erenbots Exhibit R2

Report and notes of Vaucluse Hospital Exhibit R3

Report by Mr R. Piper, researcher, dated 11 November 2002 Exhibit R4

Supplementary report by Mr Piper dated 9 December 2002 Exhibit R5

Supplementary report by Mr Piper dated 8 January 2002 Exhibit R6

Service record of Mr R.A. Mason Exhibit R7

3. The late veteran, Mr J. Snell, was born on 24 March 1922 and died on 12 December 2000. He served in the Australian Army (the army) from 5 November 1941 to 21 March 1946. After initial training in Victoria, he was transferred to Western Australia in April 1942. From 23 March 1944 to 28 October 1944, he served in Merauke, Papua New Guinea and from 20 June 1945 to 8 February 1946 in Wewak, New Guinea. The whole of his service was operational service under s.6A of the Veterans' Entitlements Act 1986 (the Act). The cause of the veteran's death was certified to have been "acute or chronic renal failure".. The respondent accepted the medical opinions that the probable cause of the veteran's renal failure was his longstanding hypertension and that the clinical onset of that hypertension was in the early 1970s.

4. As the late veteran had operational service, s.120(1) of the Act provides that a death of a veteran shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant Statement of Principles (SoP) is Instrument Nº 31 of 2001 concerning hypertension. The SoP sets out the factors, one of which must relate to the veteran's service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. In this case, the only factor relied on by the applicant was 5(b):

...

(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;

5. In her evidence before the VRB, Mrs Snell said that she had known Mr Snell since he was 15 years of age and that he did not drink alcohol prior to entering army service. She had maintained that, after service, he was not a heavy drinker, having a couple of drinks perhaps coming home from work and at the weekend ... a bottle ... Saturday and Sunday and that his drinking never caused difficulties for the family. However, in her statement of 8 October 2002, prepared for the purpose of this hearing, Mrs Snell stated:

...

8. My son was born in 1948, and when he was about 6 months old, my husband came home drunk. He was a very aggressive and abusive drunk and he was about to hit the baby, when my father punched him to the ground.

9. I asked my husband to stop drinking and to get help from Alcoholics Anonymous, but he would not go.

10. My husband would buy boxes of large bottles of beer and keep them in the shed. He would drink in secret, hiding the bottles if I came out. He could not go past a hotel without going in for a drink. Many times my children and I would have to wait for 2 or 3 hours with all our shopping until he had finished drinking at the hotel. If I would go in and ask him to come home, he would become very abusive and aggressive towards me when I got home.

In her oral evidence, Mrs Snell acknowledged that she had told the VRB that her late husband's drinking had not been a problem. However, she said that she had never discussed his drinking problem with anyone else, even their doctor, during his lifetime. She said that, after the VRB hearing, she realised that she should have told the truth about his excessive drinking. She said that his drinking got progressively worse after leaving the army. She said that he normally finished work at 4:15 p.m. but, generally, did not arrive home until 6:00 to 6:45 p.m., having been at the hotel in the intervening time. Mrs Snell suggested that he was a different person when he came home from the hotel. On Saturday mornings, both when working and after retirement, Mr Snell was said to have gone to the hotel at 10:00 a.m. and returned home at 2:00 p.m. or later. Mrs Snell said that she found empty or half-empty bottles of beer secreted around the garden at home on a regular basis. She instances two occasions involving actual or threatened assault by Mr Snell. One was that involving their six month old son, noted in her written statement, and the other was in the kitchen at a time when the children were very young when he hit her on the face after she complained of his heavy drinking. Mrs Snell said that she begged her husband to seek help for his drinking problem on a regular basis. She said that Mr Snell was very good at covering up his drinking but, generally, would not go out anywhere without having a bottle of beer before leaving and would have a bottle before dinner each evening. She was firm that he was a changed man on completing his service and that excessive drinking was apparently immediately after that service.

6. The statement from Mr Mason, who served with Mr Snell, said that it became noticeable during the latter part of service in Western Australia that Mr Snell was drinking to excess whenever the opportunity arose. He said that, during periods of service in New Guinea, Mr Snell was subject to mood changes and bouts of depression. Unfortunately, Mr Mason was hospitalised at the date of the hearing and could not give oral evidence.

7. Based on the evidence of Mrs Snell before this Tribunal, we are satisfied that the late Mr Snell would have satisfied a diagnosis of alcohol dependence and would have consumed an average of at least 200 grams per week of alcohol (equal to 20 standard drinks) at the time of the clinical onset of hypertension in the early 1970s. Whilst her evidence differed from that given to the VRB, we have no reason to doubt that this latter evidence was genuine and the variation can be explained by a lady of her era being reluctant to discuss with others a drinking problem of her husband. As a consequence, the SoP for hypertension is satisfied.

8. However, to attribute that hypertension to war service requires the alcohol dependence to be war-caused. The relevant SoP is Instrument Nº 76 of 1998. The factors in this SoP which must be relied upon are 5(b) or (d)

...

(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

...

(d) ... the clinical worsening of alcohol dependence or alcohol abuse; ...

Based on the report of Mr Piper, the respondent conceded that there was evidence to satisfy the Tribunal that the veteran experienced a severe stressor during service in Wewak. The difficulty then arises as to the date of clinical onset or clinical worsening of alcohol dependence. As the severe stressor was in 1945, such date must have been no earlier than 1945 and no later than 1947.

9. The Tribunal is conscious that the relevant dates are more than 55 years ago, we are reliant on Mrs Snell's memory and there is no medical evidence available relevant to that time. Dr Erenbots was aware of Mr Snell's heavy drinking but he commenced as his general practitioner only in 1972. From the statement of Mr Mason, it could be argued that the late Mr Snell suffered from alcohol dependence at the conclusion of his service in Western Australia and prior to service in New Guinea. On the other hand, much of Mrs Snell's evidence of specific events attributable to alcohol appeared to relate to periods after 1947. They were married in 1946 and two children were born in 1947 and 1948. For at least the first four years of their marriage, they lived with her parents. The event involving the son must have been no earlier than late 1948 and other events took place at their own home, which must have been after 1950. On the other hand, Mrs Snell was firm that her late husband was a changed man immediately after completion of his service in early 1946 and that his excessive drinking was noticeable from that time. She did note that she felt that there had been a change in him during his brief leave between Western Australia and New Guinea.

10. Accepting the difficulties that lie in the way of ascertaining the facts between 1944 and 1947 and the provisions of s.119(f), (g) and (h) of the Act, we are reasonably satisfied that the clinical onset or clinical worsening of the veteran's alcohol dependence was not later than 1947. It is possible, based on the untested evidence from Mr Mason, that he suffered from alcohol dependence prior to 1945. However, it is possible that the statement of Mr Mason was prepared on the assumption that it would assist Mrs Snell and, without the ability to question Mr Mason, we are left with the possibility that further elaboration is needed. Even accepting the statement as fact, we cannot be satisfied that there was not a clinical worsening after that date and prior to 1947. Not unnaturally, Mrs Snell's memory of the specifics at that date is unclear. On several occasions, she referred to Mr Snell being 25 or 26 when he was drinking in secret. If correct, that would have been in 1947 or 1948. While she thought there was a difference in him post Western Australia, she was particularly conscious of a change on his return in 1946. It is noted that many of the incidents referred to by Mrs Snell in those early days must have occurred after 1950 by which time Mr Snell was, at least, 28 years of age. However, we are reasonably satisfied that, even if it could be said that Mr Snell suffered from alcohol dependence prior to 1945, there was a clinical worsening of that condition after 1945 and by 1947. Given the acceptance that he experienced a severe stressor during operational service in 1945, the requirements of the SoP are satisfied. Consequently, there has been a reasonable hypothesis raised connecting the death of the late veteran with circumstances of his service in that death was caused by renal failure, such renal failure was caused by hypertension which, in turn, had been caused by alcohol dependence which related to the veteran's service.

11. As a result of our findings, the decision of the VRB should be set aside and in its stead this Tribunal decides that the death of the late Mr J. Snell was war-caused within the meaning of s.9 of the Act and the applicant is entitled to a war widow's pension from 13 December 2000.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Associate Professor J.H. Maynard

(sgd) Catherine Thomas

Clerk

Date of Hearing: 16 January 2003

Date of Decision: 31January 2003

Counsel for applicant: Mr A. Larkin

Solicitor for the applicant: De Marchi & Associates

Advocate for the respondent: Ms R. Casamento, Department of Veterans' Affairs