Adams and Repatriation Commission

[2008] AATA 775

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 775

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2007/2599

VETERANS'       APPEALS        DIVISION		)
Re		AGNES ETTA ADAMS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member

Date29 August 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Conrad Ermert

Member

VETERANS’ AFFAIRS – veterans’ entitlements ‑ widow’s claim – operational service – determination of kind of death – whether hypothesis connecting kind of death with operational service – no material pointing to hypothesis – decision affirmed.

Veterans’ Entitlements Act 1986 ss 8(1), 120(1), 120(3), 120A, 196A, 196B(2), 196B(14)

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

29 August 2008 Brigadier C. Ermert, Member

INTRODUCTION

1.       Mr Keith Adams, the veteran, served as an infantryman in the Australian Army from 26 January 1942 to 23 October 1945.  As he served in the Middle East, New Guinea and Borneo, the whole of his service constitutes operational service under the Veterans’ Entitlement Act 1986 (the Act). 

2.       Mr Adams died on 3 June 2006, aged 84 years, with the cause of death certified as:

·     Pulmonary fibrosis – years

·     Renal failure – days

·     Heart failure – days

·     Permanent pacemaker – years

·     Prostate carcinoma – years

3.       The applicant in this case is Mrs Agnes Etta Adams, the widow of the veteran.  Mrs Adams submits that the veteran’s death was contributed to by his war-caused drinking habit and the contraction of malaria.  Accordingly, Mrs Adams is applying for a widow’s pension.  Mrs Adams’ original claim was refused by the Repatriation Commission in a decision dated 28 November 2006.  The Veterans’ Review Board (VRB) affirmed that decision on 14 March 2007.  This matter is an application for review of the VRB decision.

THE CONSIDERATION PROCESS

4. It appeared to the Tribunal that the issues for determination on the review of the decision could be adequately determined in the absence of the parties. The parties consented to the review being determined without a hearing. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal proceeded to review the decision by considering the documents or other material lodged with, or provided to the Tribunal without holding a hearing.

5.       In considering the matter I had before me the documents submitted pursuant to section 37 of the Administrative Appeals Act 1975 (the T documents).  I also had a copy of the clinical notes of Dr J F Wiseman of Melbourne Pathology, the veteran’s Local Medical Officer; a copy of a report dated 11 February 2008 by Professor J F Cade, Principal Specialist in Intensive Care at the Royal Melbourne Hospital; and a copy of the respondent’s submissions in this matter, dated 23 April 2008.

THE ISSUES

6.       The first issue to be determined is the kind of death suffered by the veteran.  This follows the decision in Repatriation Commission v Hancock [2003] FCA 711 where the Federal Court concluded that in determining whether a veteran’s death was war-caused, it was, as a first step, necessary to determine, on the balance of probabilities, the kind of death suffered by the veteran. 

7.       The next issue is to determine whether the death was war-caused.

Kind of death

8.       The causes of death shown in the Death Certificate (T documents page 26) are pulmonary fibrosis – years; renal failure – days; heart failure – days; permanent pacemaker – years; and prostate carcinoma – years.

9.       In the Application for a Review of Decision  dated 15 June 2007 (T documents page iv), Ms Lyn Dolan, the applicant’s daughter, stated:

… although my Dad didn’t smoke, he drank.  We also believe that beer was handed out to the soldiers, but no one is taking responsibility for that.  My Dad would trade his packet of cigarettes for two bottles of beer.  When he returned from war he continued to drink and I think you need to take responsibility for that.

10.     In the Application for a Review of Decision submitted for the earlier hearing by the VRB (quoted in the VRB decision at T documents page viii) Ms Dolan stated:

My father was in many different countries and while there he contracted malaria, this could have contributed to other illnesses.  As stated in the specialist reports a cause for his pulmonary fibrosis was not able to be specified.  The conditions that he endured while overseas could have had a everlasting effect on his health as well as all the mental anguish, the not sleeping, the nightmares and of course he didn’t like to talk too much about the war and when he did he would break down in tears.

11.     From those statements I understand that Mrs Adams submits that the veteran’s death was related to his drinking and his contraction of malaria which contributed to his condition of pulmonary fibrosis.

12.     In his report dated 11 February 2008 Professor J F Cade stated that the causes of the veteran’s death were undoubtedly as listed on the death certificate. However, he went on to review those causes:

·     Thus, the mechanism of death was hypoxic respiratory failure, and this in turn was due to pulmonary fibrosis.  The cause of the pulmonary fibrosis was not identified, so it should be referred to as idiopathic pulmonary fibrosis (cryptogenic fibrosing alveolitis).

·     Renal failure was moderate and unlikely to have been an important contributing factor to the patient’s death.

·     Heart failure is a vague term.  In this case, left ventricular failure had been temporary and successfully treated.  Right heart failure, specifically cor pulmonale, would have been the dominant cardiac problem.

·     A permanent pacemaker was indeed present, but it had been functioning normally.

·     Advanced prostate cancer had been known for some years, but it was still under hormonal control.  It was thus a significant condition present at the time of his death, but it did not itself materially contribute to death in this case.

13.     Professor Cade said further that:

…respiratory failure was the immediate cause of the patient’s death, and in turn the cause of the respiratory failure was (idiopathic) pulmonary fibrosis.  Advanced pulmonary fibrosis is incurable and is inevitably fatal, as in this case (unless lung transplantation is possible). Under the circumstances described, no other condition could have had any more than a marginal contribution to death in this case.

14.     In regard to the veteran’s alcohol consumption, Professor Cade said [h]owever, no such condition was clinically diagnosed and his relevant liver function tests were normal…

15.     From the evidence available to me I am satisfied on the balance of probabilities that the kind of death suffered by the veteran was that of idiopathic pulmonary fibrosis.  I am not satisfied that the veteran’s prostate cancer and his heart pacemaker are the kinds of death from which the veteran succumbed.

Was Mr Adams’ Idiopathic Pulmonary Fibrosis war-caused?

16.     There is no disagreement that Mr Adams’ service in the Middle East, New Guinea and Borneo constitutes operational service.

17. Section 8(1) of the Act provides:

8(1)Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…

18. The question of whether Mr Adams’ idiopathic pulmonary fibrosis was war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note:   This subsection is affected by section 120A.

19. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from section 120A(3), which relevantly provides:

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

20. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act relevantly provides:

(2)If the [RMA] is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)operational service rendered by veterans…

the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)the factors that must as a minimum exist; and

(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

…

21. The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. Section 196B(14) provides that:

(14)A factor causing … an injury… is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)it arose out of, or was attributable to, that service…

22. The condition of idiopathic pulmonary fibrosis is the subject of an SoP. Therefore, I must apply the test prescribed by section 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:

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 ss 196B(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 s 120(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.

Step 1 – Does the Material Point to a Hypothesis Connecting Idiopathic Pulmonary Fibrosis with Mr Adams’ Operational Service?

23.     The applicant’s submissions are that the veteran’s drinking habit and his contraction of malaria are contributing factors in the veteran’s death.  However, there is no material available to me that connects alcohol consumption or malaria with the condition of idiopathic pulmonary fibrosis.  As a consequence, there is no material which points to a hypothesis connecting Mr Adams’ operational service with his kind of death of idiopathic pulmonary fibrosis.

24.     Nevertheless, before dismissing the application at this stage, I will consider the effects, if any, of the existence of a relevant SoP and the factors that must exist in order to connect the condition of idiopathic pulmonary fibrosis with operational service.

Step 2 – Is There an SoP in Force?

25.     The SoP relevant to idiopathic pulmonary fibrosis is Instrument Number 15 of 1998 concerning Idiopathic Fibrosing Alveolitis.

Step 3 – Does the Hypothesis Fit the Template of the relevant SoP?

26.     Instrument Number 15 of 1998 shows only one factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting idiopathic fibrosing alveolitis or death from idiopathic fibrosing alveolitis with the circumstances of a person’s relevant service.  That factor is an inability to obtain appropriate clinical management for the condition.  There is no evidence before me that the veteran was unable to obtain appropriate clinical management for the condition.

27.     This consideration confirms my earlier finding that there is no material pointing to a hypothesis connecting Mr Adams’ idiopathic pulmonary fibrosis with his operational service. 

Conclusion

28.     I have found that the kind of death suffered by the veteran was the condition of idiopathic pulmonary fibrosis.  However, there is no material pointing to a hypothesis connecting this condition with Mr Adams’ operational service.  As a consequence, I find that the application by Mrs Adams to have the veteran’s death found to be war-caused cannot succeed and Mrs Adams is therefore not entitled to receive the widow’s pension.

29.     This finding in no way detracts from the value of the war service given by Mr Adams as a soldier in the operational areas of the Middle East, New Guinea and Borneo.

DECISION

30.The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of hearing:   Not applicable: decision on the papers
Date of decision:  29 August 2008

Advocate for the applicant:           Ms L. Dolan

Advocate for the respondent:       Ms J. McCulloch, Department of Veterans’ Affairs