Aulsebrook and Repatriation Commission

[2001] AATA 356

DECISION AND REASONS FOR DECISION [2001] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/871

VETERANS'      APPEALS      DIVISION         )          
           Re      KATHLYN DAWN AULSEBROOK          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member Mr A. Argent, Member Associate Professor J. Maynard, Member   

Date2 May 2001

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.

........(Sgd) B. H. Pascoe.......
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – death from terminal bronchopneumonia and right thalamic glioma – whether war-caused – whether smoking arose from service – whether smoking caused respiratory disease – whether respiratory disease contributed to death
Veterans' Entitlements Act 1986
Statement of Principles
Instrument No. 73 of 1997 concerning chronic bronchitis and emphysema

REASONS FOR DECISION

2 May 2001            Mr B. H. Pascoe, Senior Member            Mr A. Argent, Member       Associate Professor J. Maynard, Member    

1. This is an application to review a decision of the Veterans' Review Board ("the VRB") which affirmed a decision of the respondent dated 11 November 1997 that the death of the applicant's late husband, Roy James Aulsebrook, was not related to his war service.

2. At the hearing the applicant, Mrs Kathlyn Aulsebrook, was represented by Mr D. De Marchi, a solicitor, and the respondent by Mr A. Hall, an advocate with the Department of Veterans' Affairs.  Evidence was given by Mrs Aulsebrook; Mr F. Buckley, a brother-in-law of the late veteran; Mr D. Aulsebrook, son of the late veteran; Dr B. Collins, a consultant forensic pathologist; and Professor J. Cade, Director of Intensive Care at the Royal Melbourne Hospital.  Letters from the late veteran's sister, Mrs E. Davies and her husband Mr L. Davies relating to the veteran's smoking habit and a letter from Dr W. Mitchell, a general practitioner, explaining the lack of clinical records, were tendered in evidence by Mr De Marchi.  The respondent tendered the clinical records of St Vincent's Hospital and the respondent's medical records relating to the late veteran.

3. The late Mr Aulsebrook died on 16 October 1984, aged 61 years, with the cause of death certified as "Terminal bronchopneumonia – 2 days  Right thalamic glioma – 9 years".  He had served in the Royal Australian Navy from 11 November 1940 to 12 March 1946 and the whole of the service constituted operational service.

4. Mrs Aulsebrook met her late husband immediately after the war at the end of 1945 and they were married in 1948.  She said that her husband had told her that he did not smoke prior to service.  When she met him he was a regular smoker of approximately one packet of cigarettes per day.  He had continued smoking until very shortly before his death.  Mrs Aulsebrook said that her husband had a persistent cough and suffered shortness of breath for many years.  He suffered from headaches, migraines, nosebleeds and chest infections on a regular basis.  She said that he attended his local medical officer frequently, often to obtain relief from chest infections but the clinical records had been destroyed.  She could not recall any specific treatment.  She could not be firm on the quantity of cigarettes smoked by her late husband as he purchased them himself.  She assumed that a medical report in March 1955 noting 10 cigarettes per day and a St Vincent's Hospital report in February 1984 noting 12 cigarettes per day were correct.  Mrs Aulsebrook was aware that her late husband had lodged many claims with the respondent during his life, assumed that he was familiar with the system and was not aware of any reason why he had not lodged any claim relating to chest problems.

5. Mr Buckley first met his late brother-in-law in 1947.  He said that the veteran was a heavy smoker then and continued until shortly before his death.  He had a cough and would "choke, carry on, spit and splutter" and vow to give up smoking.  Mr Buckley saw the veteran regularly and believed that the coughing and spitting became worse over the years.  He was unsure of the quantity smoked but believed it could have been up to 40-50 cigarettes per day.  The son, David, was certain that his late father smoked more than 10 cigarettes per day in that he recalled him smoking four cigarettes within 30 minutes on a Sunday morning in the early 1960s.  He believed that it was likely that his father smoked 30 cigarettes in a day.

6. Both Mr and Mrs Davies stated in their letters that the late veteran commenced smoking during service with the Navy.  They stated that, in later years, his health deteriorated with breathing difficulties and tiredness.

7. Dr Collins had examined the respondent's medical records.  He accepted that the records did not provide any indications of the clinical signs or symptoms of chronic respiratory system disease but considered it not unreasonable to expect the existence of such condition.  He was of the view that the evidence of the widow and relatives indicated that the veteran suffered chronic obstructive airways disease from smoking.  Consequently, he considered that it was possible that such disease could have contributed to the development of terminal bronchopneumonia.  He accepted that there was no record of sputum production and that evidence of coughing and spitting could have resulted from a throat irritation only.  He accepted also that the veteran's cerebral malignancy would have contributed to the terminal bronchopneumonia.  Nevertheless, he believed that it was possible to argue that the veteran's demise was hastened by the development of a condition to which he was pre-disposed by his smoking habit.

8. Professor Cade had examined the documentary evidence provided to the Tribunal.  He accepted that, as a long time smoker, chronic obstructive airways disease may have been present although it had never been medically diagnosed despite multiple hospital admissions over many years.  He noted that, in 1984, the veteran was recorded as having widespread rhonchi on examination and the chest X-ray showed increased markings in the right mid zone – both abnormal though non-specific findings.  Professor Cade said that the veteran had been admitted finally with an advanced and untreatable tumour and bronchopneumonia is a common terminal event or mechanism of death in such circumstances.  He considered that the abnormality in the chest X-ray was most likely to have been a chest infection which is common in hospital patients and generally inevitable with the primary condition.

9. Section 120(1) of the Act provides for the Tribunal to determine that death of the veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.  Section 120(3) of the Act provides for the Tribunal to be so satisfied if the material before it does not raise a reasonable hypothesis connecting the cause of death with the circumstances of the veteran's operational service.  Under section 120A, if there is in force a Statement of Principles ("SoP") issued by the Repatriation Medical Authority in relation to the condition suffered by the veteran, then the hypothesis is reasonable only if the SoP upholds such hypothesis.  In this case it would appear that it is argued by the applicant that the veteran suffered from chronic bronchitis and/or emphysema as a result of service-caused tobacco smoking which contributed to his death from bronchopneumonia.  The relevant SoP is that concerning chronic bronchitis and emphysema (Instrument No. 73 of 1997).  The SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.  In this case, factor 5(b) provides:

   "smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema"

A "pack-year" is defined as 7300 cigarettes which is equal to 20 cigarettes per day.

1. It was submitted for the applicant that the late veteran's smoking satisfied the relevant factor of the SoP and was service related, that the veteran had suffered from chronic bronchitis and/or emphysema and that condition had contributed to the death of the veteran.  It was acknowledged that the lack of medical records made the task more difficult but that the evidence indicated that the veteran suffered some respiratory problems and the Tribunal could not be satisfied that these did not contribute to the death.  For the respondent it was submitted that there was no evidence that the veteran suffered from chronic bronchitis and/or emphysema within the definition contained in the SoP.  It was said that the veteran had made many applications for medical conditions to be accepted as war-caused during his lifetime but none was related to any breathing or respiratory difficulties.  The respondent relied on the view of Professor Cade that the cerebral malignancy had led to the terminal condition of bronchopneumonia and not any pre-existing respiratory condition.

2. We are unable to be satisfied that the veteran suffered from chronic bronchitis and/or emphysema.  The SoP refers in the definition to "excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years".  There is simply no evidence that this was the case of the late veteran.  On 15 October 1969 a medical report (T14) states "chest-lung fields clear".  An X-ray report of 2 February 1976 (T18) noted "both lung fields appear clear".  On his discharge from the Repatriation General Hospital on 27 April 1984 the discharge summary (T23) showed "NAD" ("no abnormality detected") against "chest".  No mention of any chest problem was noted on the case history when he was re-admitted to the hospital on 29 April 1984 and discharged on 2 July 1984.  In the records of St Vincent's Hospital, which the veteran attended from 1975, there is no mention of any lung or chest problems other than the X-ray in February 1984 referred to by Professor Cade.  We note also that in many applications by the late veteran during his lifetime, no mention was ever made by him of chest, lung or breathing difficulties.

3. We are satisfied, on the evidence of Professor Cade, that the bronchopneumonia was the result of the late veteran's terminal condition of the cerebral malignancy, right thalamic glioma.  This view of the final stages of his life was confirmed by Dr Collins who, at best, felt that it was possible that there was an existing chronic airways disease which might have contributed to the ultimate bronchopneumonia.  We are satisfied, beyond reasonable doubt, that there is no sufficient ground for linking the late veteran's smoking habit with his death.  It should be said, for the sake of completeness, that the evidence would have satisfied us that his smoking arose out of service but that it played no part in his ultimate death.

4. It follows that the decision under review should be affirmed.

   I certify that the thirteen (13) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member
   Mr A. Argent, Member
   Associate Professor J. Maynard, Member

   Signed:         .......Lou Coffey.........................................
     Personal Assistant

   Date/s of Hearing  28 February 2001
   Date of Decision  2 May 2001
   Solicitor for the Applicant         De March & Associates
   Solicitor for the Respondent    Mr A. Hall, departmental advocate