Blake and Repatriation Commission
[2001] AATA 448
•25 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/856
VETERANS' APPEALS DIVISION )
Re LORNA MARY BLAKE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date25 May 2001
PlaceBrisbane
Decision The Tribunal decides that the decision under review is affirmed.
..............(Signed)................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - war widow's pension – whether veteran's death war-caused – application of Statement of Principles - clinical onset - diabetes mellitus and/or atherosclerotic peripheral vascular disease - tobacco consumption – cessation of smoking
Veterans' Entitlements Act 1986 s 8, 13, 120
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Mr K L Beddoe (Senior Member)
The applicant lodged a claim on 14 May 1997 for a war widow pension on the basis that the death of her husband, a veteran, from diabetes mellitus and atherosclerotic peripheral vascular disease was war caused. The respondent refused the claim on 11 July 1997 on the basis that the death of the veteran was not war service related.
The applicant sought review at the Veteran's Review Board. On 24 June 1998 that Board affirmed the decision of the respondent.
The applicant now seeks review of that decision.
The matter was heard on the papers filed with the Tribunal. Mr O'Gorman prepared submissions for the applicant and Mr Smith prepared submissions for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) were provided to the Tribunal as were supplementary T documents. The applicant and the applicant's brother, John Arnold Farrell provided statements. Rodney James Blake, the applicant's son, also provided a written statement.
In addition, the respondent provided a report by Dr Peter Grant dated 8 December 1999 and the Transcript of Proceedings of the Veterans' Review Board held on 24 June 1998.
The applicant's husband had accepted disabilities for the purposes of the Veterans Entitlements Act 1986 ("the Act) being:
(a) fibrositis lumbar;
(b) chronic bronchitis; and
(c) recurrent iritis.Non-accepted conditions are:
(a) diabetes mellitus;
(b) atherosclerotic peripheral vascular disease affecting both legs;
(c) hypertension;
(d) hyperlipidaemia;
(e) scoliosis;
(f) ulcers of lower limbs;
(g) refractive error; and
(h) presbyopia.
The applicant's husband passed away on 14 April 1997 and the causes of death were recorded as:
(a) sepsis secondary to infected prosthesis;
(b) diabetes mellitus; and
(c) chronic renal failure.
In relation to (a) I accept Dr. Grant's opinion that the veteran died as a result of complications of a left fractured neck femur. The significant complications being:
(a)atherosclerotic peripheral vascular disease leading to gangrene of the left foot and a below knee amputation;
(b)ongoing sepsis in a broken left hip with secondary infection;
(c)a cerebrovascular event; and
(d)aspiration pneumonia
Section 8(1)(d) of the Act states that:
the death of a veteran shall be taken to have been war-caused if:
(d) in the opinion of the Commission, the death of the veteran was due to …a disease that would not have been contracted, but for his or her having rendered eligible war service…
Section 13 provides for pensions for dependants of the veteran. Section 120(1) of the Act provides that a disease causing death was war caused unless satisfied beyond reasonable doubt that there is insufficient ground for making the determination. The issue to be decided is whether there is a reasonable hypothesis connecting the veteran's death to his war service. The application of Statements of Principle ("SoPs") required to be considered by section 120A provide medical-scientific direction with respect to particular diseases. SoPs are issued by the Repatriation Medical Authority, an independent medical authority, and state the factors which must be found to exist for a hypothesis to be considered reasonable.
The applicant's husband was born on 1 June 1911. There is no dispute that the veteran had rendered operational service having served from 21 October 1939 to 31 March 1944. During his operational service the veteran smoked tobacco. He continued to smoke after the war but from 1966 onwards appears to have been ambivalent about smoking tobacco. I am unable to be satisfied as to whether the veteran was a regular smoker after 1966. While there is evidence of smoking on occasions, the veteran asserted from 1966, or earlier dates, that he had ceased smoking. The evidence of his son include evidence that the veteran borrowed cigarettes when out. That suggests that he did not maintain his own regular supply.
The relevant SoPs are Instrument No. 87 of 1995 (atherosclerotic peripheral vascular disease) and Instrument No. 47 of 1996 as amended by Instrument No. 187 of 1996 (diabetes mellitus).
The Applicant's Arguments
It was submitted for the applicant that the ultimate cause of the veteran's death was diabetes mellitus and/or atherosclerotic peripheral vascular disease. In addition, it was submitted that these conditions were caused or contributed to by his consumption of tobacco, during and after his war service. The applicant did not pursue a contention that the veteran's atherosclerotic peripheral vascular disease was caused by the veteran's obesity which was related to the recognised war related diseases of lumbar fibrositis and chronic bronchitis.
The applicant relied on paragraph 5(c) of Instrument No. 47 of 1996 to support the hypothesis that the veteran's diabetes mellitus was war caused. Additionally or in the alternative, the applicant relied on paragraph 1(a) of Instrument No. 87 of 1995 to support the hypothesis that the veteran's atherosclerotic peripheral vascular disease was war caused.
The applicant referred to a report of Dr P Aldons of the Prince Charles Hospital stating that the veteran's peripheral vascular disease and all its complications resulted directly from the veteran's smoking habit. A report by Dr Kratzing (T4, p79) attesting to the veteran's confusion during his last illness was relied on by the applicant to refute the respondent's contention that the veteran was lucid when he completed a smoking survey around that time. However, the smoking survey was completed by the veteran on 16 October 1996 ie three months prior to his admission to Royal Brisbane Hospital.
Further, statutory declarations by the applicant, her brother Mr John Farrell (the veteran's brother-in-law), and the veteran's son, Mr R Blake, were provided in support of the contention that the veteran continued to smoke occasionally until the late 1980's, especially on social occasions. Thus, it was submitted the threshold limits of the relevant SoPs were satisfied.
The Respondent's Arguments
The respondent submitted that, after examining the terminal illness notes, Dr Grant reported that the immediate cause of death was complications of a left fracture neck of femur and the most significant of those complications was atherosclerotic peripheral vascular disease (letter of 23 March 1999). It was also acknowledged that long standing diabetes mellitus was a risk factor for atherosclerotic peripheral vascular disease.
The respondent also submitted that the date of onset of the atherosclerotic peripheral vascular disease should be sometime in 1996, although this is justified by reference to the time the veteran sustained his fatal fracture which was in fact 1997. The date of onset of diabetes mellitus was submitted to be 8 November 1985, the date of the earliest medical report in which it is mentioned. (Re Witten and Repatriation Commission (1998) 54 ALD 605).
On the basis of these time periods, the respondent argued that, for Instrument No. 87 of 1995 to apply, the veteran would need to have been smoking 5 cigarettes a day in 1980. For Instrument 47 of 1996 to apply, the veteran would need to have been smoking 10 cigarettes a day in 1975.
The respondent argued that the veteran had smoked quite heavily during his service and until some time in the 1950's. The respondent postulated that the veteran then gradually reduced his habit until he "officially" gave up although he would occasionally smoke a cigarette or cigar on social occasions taking care that his wife did not know about it. Statements made by the veteran to various doctors from 1963 wherein he advised he had given up smoking were referred to as support for this argument.
In addition, the respondent argued that an abrupt cessation of smoking habit would be memorable particularly to the applicant, marked with mood changes and a lack of physical signs about the house (no dirty ashtrays, no tobacco smell in the house or about the veteran, no smoke in the house). It was submitted that it would be very difficult for the veteran to hide the evidence of a ten-a-day or even a five-a-day smoking habit, particularly on weekends and when the veteran was retired.
The respondent argued that the veteran could have ceased smoking as early as 1963. This was supported by a Repatriation Department Diagnosis and Report Form dated 27 May 1963 (T4, p16) in which it is reported that the veteran stated he no longer smoked. In a Smoking Questionnaire signed by the veteran in 1996 (T4, p28) the veteran stated that he had ceased smoking in 1966. The respondent argued that the latter document should be given greater weight as it was completed in support of a claim for which smoking was a specific contention.
Further, the respondent submitted that the veteran was completely coherent when he signed the smoking statement on 16 October 1996, 4 days before he was admitted to the Royal Brisbane Hospital with a broken leg which injury eventually led to his death. In fact, the veteran died in 1997, however, nothing turns on that point.
The respondent questioned the credibility of the applicant and her brother by reference to the uncertainty in statements made by both with respect to when it was that they became aware that the veteran had ceased to smoke. The respondent also noted that the applicant, her brother and the veteran's son could only refer to a few occasions when the veteran smoked in the period between 1979 and the late 1980's. Further, the amount of cigarettes was never quantified by the witnesses in either their statements or in answer to questions put to them before the Veterans' Review Board.
Consideration
With regard to the veteran's atherosclerotic peripheral vascular disease, one or more of the criteria set out in paragraph I of Instrument No. 87 of 1995 must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the veteran's death with his war service. Paragraph 1(a) requires that the deceased smoked at least five cigarettes per day or the equivalent thereof for at least three years before the clinical onset of the disease and, where smoking has ceased, the clinical onset of atherosclerotic peripheral vascular disease must occur within 15 years of cessation.
Alternatively, for paragraph 1(b) to apply, the deceased must have suffered from diabetes mellitus before the clinical onset of the vascular disease. Clause 2 requires that at least one of the factors set out in paragraphs 1(a) to 1(m) (here either 1(a) or 1(b)) must be related to any service rendered by a person.
Therefore, for the applicant to succeed in establishing an hypothesis that the veteran's atherosclerotic peripheral vascular disease was war caused I must be satisfied that the veteran smoked at least five cigarettes per day for at least three years before the clinical onset of the disease and, where smoking ceased, the clinical onset occurred within 15 years of cessation of smoking. In addition, I must be satisfied that the smoking was related to war service. Alternatively, I must be satisfied that the veteran's diabetes mellitus, which was diagnosed before the clinical onset of atherosclerotic peripheral vascular disease, was war caused.
I am satisfied that the atherosclerotic peripheral vascular disease was diagnosed at or around the time of the death of the veteran, that is in 1997, as there is no mention of it in any medical report before that time. Further, I am satisfied that during the period the veteran has stated that he smoked, that is from about June 1940 until about June 1966, the veteran smoked the required number or cigarettes or its equivalent. In addition, from the evidence of the applicant, her brother, and particularly from the veteran himself (T4, pp16, 19, 28, and 29), I am satisfied that this smoking habit was causally related to service.
Evidence from the applicant and her brother regarding the veteran's smoking habit after 1966 is confused. The applicant could not remember when the veteran ceased smoking and her brother gave evidence that although the veteran said he had ceased smoking, the veteran smoked at social functions in his brother-in-law's presence until at least the mid 1980's.
Although the veteran himself had denied smoking after 1966, his son has affirmed that the veteran smoked on occasions during the period 1966 to 1988. I cannot be satisfied that the five cigarettes a day test in paragraph 1(a) is satisfied on the evidence. The veteran said he ceased in 1966. The contrary evidence only establishes social smoking on occasions. The second limb of paragraph 1(a) only applies where smoking has ceased. I am unable to be satisfied that the deceased had ceased smoking completely so that the 15 year limit from time of cessation to clinical onset required by paragraph 1(a) does not apply.
I am not satisfied that a reasonable hypothesis exists to link the veteran's cause of death, atherosclerotic peripheral vascular disease with his war service.
I am also required to consider the applicant's contention that the veteran's diabetes mellitus was war caused. The criteria set out in paragraph 5(c) (smoking) of the relevant SoP (47 of 1996) will be considered.
Dr Peter Grant in his report dated 23 March 1999 opined that the deceased's diabetes mellitus was a plausible contributing factor to the atherosclerotic peripheral vascular disease. Unfortunately, no evidence was presented to show when the veteran was first diagnosed with this disease. The first evidence of the veteran's diabetic condition is in a medical report dated 8 November 1985 (T4, p20) indicating that the veteran had been diagnosed previously and his condition was already controlled by medication.
The term 'clinical onset' has been considered in previous Tribunal decisions. In Re Witten and Repatriation Commission (1998) 54 ALD 605 the Tribunal referred to Re Robertson and Repatriation Commission (1998) 50 ALD 668 where the Tribunal, at 10-11, explained the term to refer to:
… either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at the time.
Further, at 62, the Tribunal remarked:
The tribunal finds that there can be 'clinical onset' of a disease before the condition satisfies the definition of the disease in the SoP.
I therefore find the 8 November 1985 as the date of clinical onset of the veteran's diabetes mellitus, having no other evidence before me.
It has been acknowledged by the respondent and the applicant that the deceased smoked heavily during his war service and after. Members of the applicant's family have attested to the fact that in 1988, the deceased was still smoking. By that time, the deceased had developed diabetes mellitus.
The respondent has submitted, and I am satisfied, that the applicant smoked on average, 43 cigarettes per day from 31 December 1941 to 30 June 1966 (T2, B2), thus satisfying the first limb of paragraph 5(c). However, I am unable to find that the veteran maintained this habit during the ten-year period from 1975 to 1985.
As already noted evidence from the applicant and her brother regarding the veteran's smoking habit during this latter period is, as I have stated, confused. The veteran himself said he did not smoke after 1966. Although, as I have also stated, I am satisfied that the veteran smoked during the period 1966 to 1988, there is insufficient detail to reach any conclusion regarding the amount the veteran smoked in the ten-year period prior to the onset of his diabetes although I am satisfied he smoked on occasions. I am therefore not satisfied that the second limb of paragraph 5(c) has been satisfied. Consequently, I am unable to say that a reasonable hypothesis exists to causally link the veteran's diabetes mellitus to the smoking habit he acquired during service.
For these reasons, I am not satisfied that there is a reasonable hypothesis linking the veteran's war service and his diabetes mellitus.
For these reasons the decision under review will be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
T. Shea, AssociateDate/s of Hearing Hearing on the papers
Date of Decision 25 May 2001
Solicitor for the Applicant Streeting Haney, lawyers
Respondent Mr. M. Smith, departmental advocate
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