Boland and Repatriation Commission
[2000] AATA 775
•1 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 775
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/292
VETERANS' APPEALS DIVISION )
Re MARIE BOLAND
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell
Date1 September 2000
PlaceSydney
Decision The Tribunal determines that the decision under review is set aside and in substitution therefor finds that the late veteran's death was causally related to his operational service, and in particular the accepted psychiatric condition, with date of effect 19 May 1996.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlements – cause of death – schizophrenia – manic-depressive psychosis – coma therapy – ECT – deep sleep therapy – dementia – broncho-pneumonia – widow's claim – death certificate – reasonable hypothesis.
Veterans' Entitlements Act 1986, Sections 120, 120 A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
1 September 2000 Dr JD Campbell, Member
Mrs Marie Boland ("the Applicant") in this matter seeks a review of the decision of a delegate of the Repatriation Commission ("the Respondent") dated 29 August 1996 which determined that the death of the late veteran Kenneth Augustine Boland, was not causally related to war service. This decision was reviewed and affirmed by the Veterans Review Board on 29 January 1999.
A hearing was held in Sydney on 2 June 2000 at which the Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Mr Wallis, an advocate from the Department of Veterans Affairs.
The following written material was placed in evidence before the Tribunal.
Exhibit No. Description Date
T1 – T19 pp1 – 84Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.
A1 Applicants Statement of facts and Contentions 18 May 2000
A2 Medical Report from Dr Rutland 7 April 2000
A3 Medical Report from Dr Gertler 18 April 2000
A4 Statement of Applicant 13 August 1996
A5 Statement by Ms C. Boland Undated
A6 Two page record relating to Mr Boland 1995/96
A7 Bundle of clinical notes relating to Mr Boland 10 May 1996
A8 Bundle of clinical notes relating to Mr Boland 7 September 1994
A9 Bundle of clinical notes relating to Mr Boland 24 July 1994
A10 Bundle of clinical notes relating to Mr Boland Veterans Retirement Village 10 May 1996
A11 Four pages of clinical notes relating to Mr Boland 20 December 1965
R1 Respondents Statement of Facts and Contentions 29 May 2000
R2 Death Certificate of Mr Boland 27 May 1996
R3 Medical report from Dr Gertler 18 October 1999
ISSUES:
The issue before the Tribunal was whether the late veteran Kenneth Boland's cause of death was causally related to his operational war service.
LEGISLATION:The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular subsections 120 (1) and120 (3).
BACKGROUND:The Applicant lodged a claim for the acceptance of the death of Kenneth Boland as being causally related to war service on 19 August 1996. This claim was refused on 29 August 1996, when a delegate of the Respondent concluded that the Veteran's death was not causally related to his war service, as the medical evidence relating to Alzheimer's disease was not in accord with the Statement of Principles Instrument No 378 of 1995, and as such a reasonable hypotheses was found not to exist (T2, p4). On 29 January 1999 the Veterans' Review Board affirmed the earlier decision.
AGREED FACTS:It was agreed between the parties that:
(a) the late veteran had a period of operational service from 5 March 1943 to 11 May 1945; and
(b) the late veteran had accepted disabilities of schizophrenia and malaria; and
(c) the late veteran had the following relevant medical history:
(i) fractured skull and concussion in 1935 prior to enlistment;
(ii) admission to 2/14 AGH in early October 1944 in New Guinea, where a diagnosis of schizophrenia was made. Treatment given included Electro Convulsive Therapy ("ECT");
(iii) transferred to 114 AGH in late October 1944 and treatment given included further ECT and insulin coma therapy;
(iv) reclassification medical board completed 26 March 1945, with army discharge occurring 11 May 1945. The disability of schizophrenia was accepted as war caused on 19 April 1945;
(v) in 1958, a suspected epileptic fit, with no obvious recurrence;
(vi) in 1959, a fall from a bus resulting in a head injury;
(vii) in 1965, admitted to a private hospital in Castlecrag for 'nervous breakdown'. Treatment included deep sleep therapy;
(viii) in 1969, treated in RGH Concord and treatment initiated which was consistent with a diagnosis of manic-depressive disorder;
(ix) in 1979, fall from stepladder resulted in closed head injury with skull fracture;
(x) admitted to RSL Veterans' Retirement Villages in 1990 with a history of manic-depressive illness, increasing forgetfulness and occasional aggression. By 1992, reported as being confused, wandering but cooperative and generally happy. In 1993 able to go to bank and shopping, but may catch wrong bus back to the hostel. By 1994, evidence of increasing disorientation and inability to care for himself without supervision. Able to recognise people;
(xi) transferred to specific hostel for dementia patients on 24 July 1994. Gradual deterioration with confusion at times, difficulty with sleeping and in September 1994, urinary incontinence;
(xii) transferred to nursing home on 7 September 1994 where he continued to slowly deteriorate, having had recorded at time of admission – "a very charming old gentleman – singing for the staff and quite quick witted…cooperative since admission…speaks clearly and responds appropriately to all verbal communication…no evidence of inappropriate or verbal aggression." He was reported as being slightly confused and disorientated, having difficulty with comprehension due to hearing loss, anxious and having some behavioural problems;
(xiii) Over the ensuing months, it was reported that the veteran demonstrated increasing confusion and disorientation, together with periodic incontinence and impulsive behaviour, with inappropriate responses. He was able to enjoy visits by wife and daughter in July 1995 and was recorded as being bright and cheerful and participating in day time activity at this time. Episodes of aggressive physical behaviour and disruptive verbal behaviour in July 1995 associated with increase of lithium medication. Remained much the same with symptoms of confusion, disorientation and wandering interspersed with periods of happy behaviour and recognition of family and ministers;
(xiv) On 5 May 1996, the late veteran was recorded as having a respiratory tract infection for which he was treated with antibiotics, panadol and physiotherapy, and nursed generally in a tub chair. Aggressive behaviour noted at this time. Gradual deterioration with increasing evidence of respiratory distress, with death occurring on 10 May 1996.MEDICAL EVIDENCE:
A death certificate was completed by Dr Parker, the attending general practitioner on nominating cause of death as broncho-pneumonia (five days) and Alzheimer's disease (years) (Exhibit R2).
Dr Parker, the attending general practitioner, in a series of letters stated the following:
"I would like to make the following points concerning his dementia.
(1) The diagnosis of Alzheimer's Disease is, in life, a clinical one.
(2) Depression can cause symptoms similar to those of Alzheimer's Disease.
…
(4) There is a possibility that the depression could have been aggravated by Mr Boland's ECT treatments 1945. (T9, p65).
…"
"…Depressive Illness caused general disability, making him more susceptible to bronchopneumonia… I should have stated this on his Death Certificate…" (T11, p68).
"His mental state in my opinion was no more due to manic depression psychosis than Alzheimer's…
…I should have included the diagnosis of manic depression psychosis in his death certificate…
In retrospect I should have written Dementia not Alzheimer's disease on the death certificate." (T15, p72).
DR GERTLER:
Dr Gertler, a consultant psychiatrist, supplied two medical reports in this matter. In his first report dated 18 October 1999, Dr Gertler concluded that the late veteran's psychiatric condition was:
(a) more appropriately diagnosed as bipolar or manic depressive disorder; and
(b) the dementia experienced by the veteran in his later years was not caused by his pre-existing psychiatric condition; and
(c) his psychiatric condition was not linked to the later onset of dementia; and
(d) an association may exist between the veteran's broncho-pneumonia and his dementia, but not to the underlying psychiatric disturbance. (Exhibit R3).
In a further medical report dated 18 April 2000, Dr Gertler made the following comments:
"…
Further to my initial report of 8 October 1999, having had access to the details of Mr Boland's prolonged psychiatric treatment in 1944/45 and the nature of that treatment, it is possible to come to the conclusion that Mr Boland's dementia was caused by the treatment which he received for his psychiatric condition to a large extent, rather than the condition itself. The dementia, in my opinion, could well have led to the general debility which predisposed him to the development of broncho-pneumonia which ultimately caused his death.
The use of lithium at a dosage not exceeding 250 mg three times a day for the period of time prior to Mr Boland's death, though probably not including the last 24 – 48 hours of his life, would not, in my opinion, have contributed to the onset of, or aggravated, his bronco-pneumonia. Even though he was elderly and frail, the serum levels of lithium obtained were towards the lower end of the normal range an would have been tolerated by him.
Mr Boland was restrained in a tub chair because of his aggression, towards the end of his life. His aggression was, in my opinion, caused by his severe dementia.
As mentioned above, the ECT, coma therapy and deep sleep therapy would reasonably have contributed to the development of Mr Boland's dementia along with the three incidents as a result of which he sustained skull fractures. Prolonged treatment with lithium carbonate is unlikely to have contributed to his dementia.
On the balance of probabilities, it is my opinion that the ECT, coma therapy and deep sleep therapy which Mr Boland received was highly likely to have led to neurological problems which caused him to fall from a bus and from the stepladder." (Exhibit A3).Dr Rutland, a consultant respiratory physician, in a medical report dated 7 April 2000, summarised his opinion with the following statement:
"In my opinion I do not believe that there is a reasonable hypothesis linking the veteran's war-caused psychiatric condition or his war service to the development of bronchopneumonia which caused his death in 1996.
It is possible that the need to physically restrain him during the last days of his life (necessary because of his behaviour) may have impaired his response to the bronchopneumonia and contributed to his death. This is more than a mere possibility and extends, I feel, to a reasonable hypothesis. In this way, his psychiatric condition(s) may have contributed to his death." (Exhibit A2).
SUBMISSIONS:
It was submitted on behalf of the Applicant that the following hypothesis constitutes a reasonable hypothesis.
"On the basis that the Applicant's accepted condition of schizophrenia was a misdiagnosis and in fact the Applicant suffered from bipolar disorder:
1. Bipolar disorder led to each of ECT treatment, coma therapy and deep sleep therapy;
2. ECT treatment and/or coma therapy and/or deep sleep therapy led to dementia;
3. Dementia led to physical restraint;
4. Restraint led impaired recovery from broncho-pneumonia;
5. Broncho-pneumonia led to death."
The Applicant submits that there was no statement of principles determined at the time of application or initial determination for the conditions nominated in the hypothesis. Further, the Applicant relies upon the opinions of Drs Gertler and Rutland to support the reasonableness of the hypothesis.
The Respondent contends that the late veteran suffered from alzheimer's disease for years prior to his death, and further relies on the death certificate, this being the best evidence of the most appropriate diagnosis of the disease afflicting the late veteran as at the date of death.
A such, it is the Respondent's contention that the circumstances of the late veteran's affliction with alzheimer's disease does not satisfy the relevant factors within the Statement of Principle, Instrument No 378 of 1995.
CONSIDERATIONS AND FINDINGS:
There are a number of medical issues in this matter which in the Tribunal's view require significant elucidation. The first issue is whether the condition deemed a war caused disability was correctly diagnosed as schizophrenia, or whether it should have been altered to what the late veteran was subsequently treated for – manic-depressive disorder. In the Tribunal's view, this issue is not of great significance, although it would be the Tribunal's opinion that on the medical evidence contained within the records made available to the Tribunal and the opinions expressed by the treating medical practitioners over time, the more appropriate diagnostic label for the late veteran's psychiatric disorder was manic-depressive disorder. Further there is no medical evidence before the Tribunal to suggest that there was the onset of a new psychiatric condition in the late 1960's experienced by the veteran and for this purpose the Tribunal does find that the veteran did suffer from a continuing psychiatric disorder which was war caused, and which, while initially diagnosed as schizophrenia, was later diagnosed as a manic-depressive disorder.
The Tribunal does note that the late veteran did receive particular therapy for his war caused psychiatric condition and that this included:
Electro Convulsive Therapy on a number of occasions.
Insulin Coma Therapy.
Deep sleep Therapy.
The Tribunal also notes that the late veteran experienced a possible epileptic episode in 1958, a fall from a bus in 1959 and a fall from a stepladder with a fractured skull in 1979 as well as a fractured skull and concussion pre-war. The Tribunal notes the opinion of Dr Gertler when he states:
"There is evidence as well of continuing and worsening symptoms of chronic organic brain syndrome or dementia. The onset of this appears to have been in the late 1960s and given that Mr Boland was at the time in his mid 50s, the early onset could well have been related to the brain damage which he sustained during his multiple courses of ECT and insulin coma. The brain damage would have been aggravated by the two subsequent falls. Mr Boland's severe head injury at the age of 25 may also have contributed to the later development of his organic deterioration…" (Exhibit A3).
It is the Tribunal's finding, following an examination of the medical evidence and the opinions expressed by both Drs Gertler and Parker, that the late veteran suffered from dementia for a number of years leading up to his death.
The Tribunal, in considering the issue of the cause or causes of the dementia, notes the opinion of Dr Gertler and concludes that the ECT, coma therapy and deep sleep therapy received by the late veteran would reasonably have contributed to the development of the veteran's dementia, along with the three incidents experienced by the veteran in which he sustained serious head injuries. The Tribunal also notes the opinion of Dr Gertler, when he concludes on the balance of probabilities, that the various earlier nominated treatments received by the veteran were highly likely to have led to the neurological problems which caused him to fall from both the bus and the ladder.
As a consequence of the considerations referred to in the previous two paragraphs, the Tribunal finds that the treatments received by the late veteran, namely ECT, coma therapy and deep sleep therapy contributed directly to the condition of dementia and also indirectly by way of causing neurological problems which led to further falls and brain damage and subsequent dementia.
In considering the issue of whether the late veteran suffered from alzheimer's disease, the Tribunal notes that:
the definition of alzheimer's disease within the Statement of Principles, Instrument No 378 of 1995 means a dementia that is characterised histopathologically by "an abundance of neuro fibrillary tangles and senile (neuritic) plaques in limbo structures, the cerebral cortex and subcortical nuclei…".
It is clear to the Tribunal that no evidence has been adduced to make a diagnosis of alzheimer's disease consistent with what is required by the Statement of Principles, Instrument No 378 of 1995. Further the Tribunal notes that Dr Parker has retracted his diagnosis of alzheimer's disease and has expressed an opinion that the proper diagnosis that should have been included on the death certificate is dementia. The Tribunal finds that a diagnosis of alzheimer's disease cannot be made in accordance with the definition contained within Instrument No 378 of 1995. For the reasons nominated above. Further the Tribunal finds that the diagnosis at the time of death from broncho-pneumonia, was dementia.
The Tribunal notes the opinion of Dr Gertler when he stated that the late Applicant was: "restrained in a tub chair because of his aggression, towards the end of his life. His aggression was, in my opinion, caused by severe dementia." (Exhibit A3). Further, the Tribunal notes the opinion of Dr Rutland that restraint in the tub chair (because of his behaviour) may have impaired the Veteran's response to the broncho-pneumonia and contributed to his death. The Tribunal concludes that there is a hypothesis linking the late veteran's war caused psychiatric condition, the treatment of that condition with ECT, coma therapy and deep sleep therapy, with the adverse effects of such therapy contributing to the cause of the dementia which in turn contributed to the late veteran's death from broncho-pneumonia, because of restriction in the tub chair, arsing from the late veteran's aggressive behaviour, which may have impaired his response to that condition (broncho-pneumonia).
The Tribunal in considering whether the hypothesis is a reasonable hypothesis notes that the conditions listed at the time of death and found to exist by the Tribunal are broncho-pneumonia and dementia. The Tribunal also notes that no statement of principles existed for these two conditions at the time the primary decision was made by the Respondent, and as such no statement of principles apply. The Tribunal in it's consideration of whether the hypothesis is a reasonable hypothesis notes the opinion of Dr Rutland when he comments that the restraint in the tub chair may have impaired the late veteran's response to his broncho-pneumonia was more than a mere possibility and extends to a reasonable hypothesis. The Tribunal also notes that the issue of mere possibility was not argued by the Respondent, but nevertheless the Tribunal, having examined the issue, finds that the relationship described in the final leg of the hypothesis was more than a mere possibility and as such confirms that a reasonable hypothesis does exist, linking the late veteran's war caused psychotic condition, the treatment of that condition with ECT, coma therapy and deep sleep therapy, the adverse effects of the nominated treatments contributing to the cause of the dementia both directly and indirectly and the dementia contributing to the late veteran's death by way of restraint in a tub chair because of his aggressive behaviour arising from the dementia, explaining the late veteran's response to the broncho-pneumonia.
The Tribunal having found that a reasonable hypothesis exists, further examined the evidence to establish whether there were any facts or material adduced or in evidence which would disprove any of the facts which go to the creation of the hypothesis. The Tribunal finds that there were no other facts adduced or in evidence which would allow the Tribunal to disprove beyond a reasonable doubt stated facts existing in the creation of the hypothesis.
The Tribunal accordingly finds that a reasonable hypothesis is established and that the late veteran's death is causally related to his operational service.
DETERMINATION:The Tribunal determines that the decision under review is set aside and in substitution thereof finds that the late veteran's death was causally related to his operational service, and in particular the accepted psychiatric condition. Date of effect is 19 May 1996.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision of :
Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 2 June 2000
Date of Decision 1 September 2000
Representative for the Applicant Self Represented
Counsel for the Respondent Mark Vincent
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