ANGELA KILMARTIN and REPATRIATION COMMISSION
[2009] AATA 634
•19 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 634
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2968
VETERANS’ APPEALS DIVISION ) Re ANGELA KILMARTIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member and Dr J B Morley, Member Date19 August 2009
PlaceBrisbane
Decision
For reasons given orally at the hearing, the Tribunal affirms the decision under review.
.....................[sgd].....................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – veteran had WWII army service – claim by widow – whether veterans’ death was war-caused – kind of death – Statement of Principles – decision affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 8, 120, 120A
Repatriation Commission v Deledio (1997) 47 ALD 261
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Hill v Repatriation Commission [2009] FCAFC 91
Collins v Repatriation Commission [2009] FCAFC 90REASONS FOR DECISION
19 August 2009 M J Carstairs, Senior Member and Dr J B Morley, Member 1. Kevin William Kilmartin, a World War II veteran, died in 2005 at the age of eighty-two. Before his death, he had suffered for some years with advanced dementia. His wife, Angela Kilmartin, seeks a pension as his widow.
2. Broadly speaking, to succeed in such a claim, the veteran’s death must have been related to his war service, more particularly, as having arisen out of, or as being attributable to that service[1]. The injuries (or diseases) which the veteran had claimed during his life as being so related, and which the respondent had accepted as being so, were:
§ “old osteoarthritis left femur;
§ “varicose veins left leg”; and
§ “L4/L5 disc degeneration and spondylosis”.
[1] Section 8(1)(b) of the Veterans’ Entitlements Act 1986.
3. It is accepted that the veteran did not die from any of those injuries or diseases. However, that does not act as a bar to the success of Mrs Kilmartin's claim for a pension as his widow. Mrs Kilmartin did, however, need to establish that what caused her husband’s death could be attributed to his service.
4. Mrs Kilmartin had relied on a number of possible hypotheses in support of the claim. However, the nub of her claim is that the veteran’s death was related – in some way – to smoking, a habit which the veteran had told her commenced during his service, and one he maintained until stopping (at the latest) about 1970.
THE ISSUES
5. The ultimate question posed under the legislation is that, as mentioned, in s 8 of the Veterans’Entitlements Act 1986 (“the Act”). That is, did the veteran’s death arise out of, or was it attributable to, his war service?
6. That question which provides the gateway to whether Mrs Kilmartin can be paid pension as his widow is governed by the provisions in s120 of the Act. This section provides the standard of proof in matters of war causation where a veteran has operational service. Section 120A of the Act deems that standard to have been met when an hypothesis, positing a possible connection with war service, conforms to a factor(s) set out in a relevant Statement of Principles determined by the Repatriation Medical Authority.
7. This legislative framework was interpreted by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, as requiring decision-makers to follow four steps in the reasoning process in order to determine whether a condition is war-caused. In Repatriation Commission v Hancock [2003] FCA 711, Selway J stated that in cases where a veteran has died, there are two other steps before applying the Deledio methodology. Those steps are:
§ determining that the pre-conditions for a claim other than causation are made out – including that the deceased was a veteran; the applicant his widow; and that the veteran had died; and
§ determining the kind of death suffered by the veteran (as referred to in s120A(4) of the Act); this needing to be established to the standard of reasonable satisfaction. (Identifying the kind of death enables the decision-maker to specify whether a Statement of Principles applies to that kind of death).
8. There is no question in this case that the pre-conditions were made out, as the deceased was a veteran and Mrs Kilmartin, his widow. Given the contentions by the parties and the remaining steps set out in Deledio and Hancock, the matters in issue in this case are:
· how to characterise the veteran’s kind of death;
· whether the material raises a hypothesis or hypotheses connecting that kind of death with the circumstances of the veteran’s service;
· whether there is a Statement (or Statements) of Principles in force, relevant to that kind of death?
· whether the hypothesis is a reasonable one? To be reasonable, a hypothesis must contain one (or more) of the factors set out in the relevant Statement; and
· as the ultimate question, was the death war-caused? This, as the last of the Deledio steps, raises factual considerations in the context of particular standard of proof. Once a reasonable hypothesis is raised, the decision-maker must be satisfied beyond reasonable doubt that an injury is not war-caused. If not so satisfied, the claim will succeed.
CHARACTERISING THE KIND OF DEATH
9. The veteran’s death certificate[2] recorded as the causes of death:
· 1(a): acute renal failure (1 week)
· 1(b): dehydration
· 1(c): advanced dementia (more than 5 years)
· 2: chronic renal failure.
[2] Death certificate dated 29 August 2005 – Document T4, Folio 17.
10. The respondent’s senior medical officer, Dr P Grant, provided additional helpful evidence by way of a document to assist with reading and interpreting this death certificate[3]. Dr Grant stated, in essence, that the veteran’s death certificate should be read as follows:
§ firstly, those causes that directly lead to death are noted and marked (1)(a),(b) and (c). Thus understood they form part of a causal chain:
a.acute renal failure of 1 week duration (due to);
b.dehydration, of 2-3 weeks duration (due to or as a consequence of);
c.advanced dementia, which the veteran had suffered for more than 5 years; and
§ secondly, other significant causes, contributing to the death but not related to the disease or condition causing it, are noted on the death certificate (2). Recorded on this death certificate, in this regard: chronic renal failure.
[3] T-documents, p17.
MEDICAL AND OTHER EVIDENCE
11. Some support had been lent to Mrs Kilmartin’s claim for pension early on by the report of Dr R Dunlop[4], general practitioner to the veteran during the last years of his life. Dr Dunlop made the general observation that the veteran’s death had been certified at Greenslopes Hospital, where the veteran had been taken at an acute stage. This meant, she said, that death was certified by doctors who had the veteran’s care for only two weeks, whereas the veteran had been under Dr Dunlop’s care for some five years. Dr Dunlop stated that whilst it was true that the veteran had died of acute renal failure and dehydration, (that is, as per the death certificate) he had suffered from dementia, secondary to small vessel ischaemic disease, for 10 years. She observed that the veteran had taken up smoking during service and continued to smoke until 1965, observing further that “this could well have caused small vessel disease with resultant dementia and atrial fibrillation”.
[4] P18, dated 20 February 2006.
12. Dr Dunlop canvassed, without providing any meaningful evidentiary support for her opinions, a number of other conditions from which the veteran had suffered from time to time, including such things as skin cancers and constipation he had suffered during service. However, we formed the impression that Dr Dunlop raised these additional matters to ensure that all possibilities were explored when Mrs Kilmartin’s claim came to be examined. That is, the report itself does not go beyond suggesting that these “might” have made some contribution to the veteran’s death. It is difficult to see that these sundry conditions could be in any way related to the veteran’s death as certified: Dr Dunlop’s suggestions find no support in the evidence of the specialists who have been called upon to comment on causation with respect to the veteran’s death.
13. The respondent had commissioned a report from Dr J Cameron, consultant neurologist, who dealt directly with the questions in issue, and the matters posed by Dr Dunlop. Dr Cameron stated that the tests conducted at Greenslopes Hospital were in keeping with a diagnosis of generalised dementia of the Alzheimer’s type. Dr Cameron said that two CT scans undertaken reflected a generalised atrophy rather than a cerebro-vascular insult, as was mooted by Dr Dunlop. Dr Cameron observed that any mild underlying cerebrovascular changes would have been no more than were consistent with the veteran’s age.
14. Dr Cameron therefore was unequivocal in his conclusion that the evidence did not support Dr Dunlop’s suggestion that there might have been a vascular cause (that might be related to smoking) for the veteran’s dementia.
15. In order to fully explore Dr Dunlop’s concerns about the certification of death, we sought a further report from Dr G Tucker, who had not been consulted in the course of reviewing the claim, but who had had specialist care of the veteran during his lifetime.
16. Another reason for further following up with Dr Tucker was that Mrs Kilmartin raised in her evidence on the first day of hearing other matters about her husband’s declining health. In particular, she mentioned intermittent incidents during which he would lose consciousness.
17. Dr G Tucker, who is a highly respected physician, stated in his report that he had treated the veteran for a number of years before his death[5]. He addressed answers to questions that we had posed for him, taking into account the veteran’s symptoms as described to us at the hearing. Dr Tucker set out that he had been called upon to assess the veteran’s confusional state after bowel surgery in 2002. The operation was not straightforward and neither was the veteran’s recovery. A second operation was required and the veteran was diagnosed with delirium while still recovering in hospital. At discharge, Dr Tucker diagnosed, amongst other conditions, “confusional state/early dementia”. Dr Tucker stated that he then did not see the veteran until 2004 at a dementia respite centre.
[5] Exhibit R4. Report dated 25 May 2009.
18. Dr Tucker stated that while there is no doubt that smoking may contribute to small vessel ischaemic disease, the veteran had stopped smoking in the 1960’s. In those circumstances, Dr Tucker was firmly of the opinion that the veteran had survived for 35 years and cigarette smoking then could not be blamed for the veteran’s late onset, small vessel, ischaemic disease. This, he observed, had not caused symptoms until the last few years of his life. In that regard Dr Tucker stated:
His cigarette smoking is unlikely to have contributed to his small vessel disease in view of the long interval of time from when he stopped smoking….and when investigation of his cognitive problems began. I believe his age was the main contributor to the small vessel disease.
19. Dr Tucker said that he had no record of the veteran suffering episodes of unconsciousness, such as were described by Mrs Kilmartin in her evidence. He said that a number of explanations could have been given for such events. Dr Tucker stated that episodes of lapsing consciousness could have been caused by cardiac rhythm disturbance, which is more likely to develop in the aged. However, with respect to the possibility of the veteran having suffered renal artery atherosclerotic disease, which might be connected to the chronic renal failure referred to in the death certificate, Dr Tucker thought this was not the case. He stated that it was more likely that the renal problem was due to age and the veteran’s diabetes.
20. Finally, in answer to the question whether there was any possible association between the veteran’s smoking habit, his atrial fibrillation, his episodes of lapsing consciousness, and his dementia, Dr Tucker said it was unlikely that the veteran’s past smoking habit was related to atrial fibrillation. He thought that atrial fibrillation was due to age-related cardiac system degeneration and enlargement of the left atrium.
21. So the evidence, now fully explored does not support a connection between the veteran’s death and his service. This is because, on a proper identification of the cause of death, the only conclusion open on the medical evidence is that the veteran’s kind of death was due to an Alzheimer’s type dementia.
APPLICATION OF THE LAW
22. As the Federal Court said in Repatriation Commission v Towns [2003] FCA 1262, the expression kind of death is a wide reaching one, and not limited to the prime cause of death in a medical sense. However, recent Federal Court cases make clear that kind of death refers to the medical cause of death, including the underlying medical causes of death[6]. This requires identification of a particular medical condition(s) based on medical diagnoses. There may be more than one cause of death, but whether this is so, and the relevant contributions where there are several factors at play, are matters to be decided on the balance of probabilities, taking into account the medical evidence in that regard. The Act requires specific identification of the kind of death for the purposes of determining whether the death gives rise to an obligation to pay pension to the veteran’s dependants.
[6] Hill v Repatriation Commission [2009] FCAFC 91; Collins v Repatriation Commission [2009]23. We are reasonably satisfied, accepting also the conclusions of Dr Tucker and Dr Cameron in this regard that the veteran’s kind of death, was from complications that resulted from his underlying dementia.
DOES THE MATERIAL RAISE AN HYPOTHESIS CONNECTING DEATH WITH SERVICE?
24. That being so the applicable Statement of Principles is No 17 of 2001 for Alzheimer’s disease, where the condition is defined as .
… a dementia that is characterised histopathologically by an abundance of senile (neuritic) plaques and/or neurofibrillary tangles in neocortical regions excluding the hippocampus and subiculum; and characterised clinically by an insidious onset of dementia symptoms including intellectual, cognitive, and social decline in function and memory impairment which progresses gradually and is irreversible.
25. That is the Statement of Principles through which the possible connections with service must be examined – using the Deledio steps.
26. The difficulty for Mr Kilmartin’s case is that this Statement of Principles limits to two only, factors connecting disease injury or death with service and, of those, only one of any possible relevance to the case :
(a) suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease.
27. There was, it should be noted, no factor that connected a smoking habit to the condition from which the veteran died. (There was no evidence, it should also be noted, to suggest that the veteran had sustained any injury to his head, related to service).
28. This meant that there was no reasonable hypothesis raised. Accordingly, the claim fails at what is referred to as the third of the Deledio steps, which requires that the Tribunal be satisfied that an hypothesis is reasonable. The metes and bounds of what is reasonable, where a Statement of Principles must be applied, is what are set out as the relevant factors in that Statement. Where the evidence does not point to that factor the claim cannot succeed. That is the state of the evidence here. Put in the terms of s 8 of the Act, the veteran’s death was not attributable to his war service.
29. We would not wish to leave this matter however without making mention of Dr Tucker’s concluding remarks. He stated:
One of the matters relating to her husband’s demise causing her to be upset is that deceased non-gold card veterans apparently are not able to be acknowledged on the Memorial Wall at the Australian War Memorial. This may not be the forum in which to discuss such an issue but obviously it is important for families of such veterans to have some public acknowledgement of the veteran and their service. I see no more fitting place than the Australian War Memorial.
30. Mr J Kelly, for the respondent, pointed out that such matters fall outside the Department’s responsibilities. We simply wish to record here that it is understandable that Mrs Kilmartin, having cared unstintingly for the veteran during the last years of his life, at a time when his health was in major decline, is deeply saddened by the lack of tangible recognition now given to her husband’s meritorious service to his country during a time of war.
31. However, under the Act, the decision before us must be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Senior Member and Dr J B Morley, Member.
Signed: ............................[sgd]...................................................
Emily Clarke, AssociateDates of Hearing 27 March, 19 August 2009
Date of Written Reasons 26 August 2009
The Applicant was assisted by Mr D Whittaker
For the Respondent Mr J Kelly, Departmental Advocate
FCAFC 90.
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