Brown and Repatriation Commission
[2003] AATA 1010
•8 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1010
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/1721
VETERANS APPEALS DIVISION ) Re FREDA YETTA BROWN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M Allen;
DR M E C Thorpe, member.Date8 October 2003
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen ...............................................
Senior Member
CATCHWORDS: Veteran’s entitlements. Cause of death refers to real or operative cause not a terminal condition. in this case bronco pneumonia was end process of dying not cause of death. Whether vascular dementia caused or contributedto by war caused smoking and alcohol habits.
Veterans’ Entitlements Act 1986 s120
Fitzgerald v Penn (1954) 91 CLR 268
Chappel v Hart (1998) 195 CLR 232
Reg V Malcherek [1981] 1 WLR 690
Repatriation Commission v Hancock [2003] FCA 711
Spencer v Repatriation Commission 34 AAR 379
REASONS FOR DECISION
8 October 2003 MR. D. M. ALLEN, SENIOR MEMBER AND
DR THORPE, MEMBER1. By application lodged the 16th day of November 2001 the Applicant sought review of a decision of the Respondent as affirmed by a Veterans’ Review Board that the death of her late husband, Wilton John Brown, was not attributable to his war service.
2. The late veteran died on the 23rd July 1992, the certified cause of death being:
“1. (a) Respiratory Arrest – Minutes
(b) Bronchopneumonia – Four Days
2. Senile Dementia – Two Years”.
3. As the deceased had operational service as that term is defined in section 6 (A) of the Veterans Entitlements Act 1986 (VEA), the standard of proof in this matter is that prescribed by subsections 120(1) and (3) VEA namely, that the Tribunal shall determine that the death of the deceased was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall however be deemed to be so satisfied if, after a consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the service rendered by him.
4. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
5. At the outset the Tribunal must determine on the balance of probabilities the “kind of death” suffered by the deceased veteran, see Repatriation Commission v. Hancock [2003] FCA 711.
6. In determining the “kind of death” the Tribunal is concerned to find the real or operative cause of death as opposed to the final stage of the process of dying. To adopt the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276, the Tribunal must ascertain whether a particular illness or disease can fairly and properly be considered the cause of death. See also Chappel v Hart (1998) 195 CLR 232 at 243 per Gaudron J and compare Reg v Malcherek, Reg v Steel [1981] 1 WLR 690 especially at pp 695, 696.
7. The Applicant’s statement of facts and contentions (exhibit A1) postulates that the deceased’s bronchopneumonia was caused by a chronic bronchitis which in turn was attributable to a war-caused smoking habit and was thus a war-caused death.
8. Evidence was received from Professor Breslin consultant thoracic physician and Dr Michael Burns who is also a thoracic physician. We do not need to refer to their evidence in detail but suffice it to say that where the evidence of Professor Breslin conflicts with that of Dr Burns we prefer the evidence of Professor Breslin.
9. Professor Breslin pointed out in his evidence that when the deceased was admitted to hospital, namely the Prince of Wales Hospital, for the final time, he had been diagnosed as suffering from Alzheimer’s disease and was immediately sent to palliative care. In other words he was regarded as dying. Bronchopneumonia is the usual terminal event in Alzheimer’s disease and, on prior investigations, there was no evidence to support a finding that the deceased had chronic bronchitis or chronic airflow limitation. When the deceased’s chest had been examined in 1965, 1969, 1978, 1987 and 1991 it was found to be normal. Chest x-rays in 1978 and 1990 were reported to be normal and blood gases performed in 1987 were entirely normal, meaning that the deceased’s lungs were functionally normal at that time.
10. Having had the advantage of hearing the evidence of both Professor Breslin and Dr Burns together with the report of Professor McLeod neurologist (exhibit R2), in which he states that “bronchopneumonia is the most likely cause of death in people with Alzheimer’s disease”, we are satisfied on the balance of probability that the cause of the veteran’s death was dementia in which bronchopneumonia was but the end of the dying process and not an operative cause.
11. Evidence was also received by way of reports and orally from neurologists Professor McLeod and Dr Corbett.
12. As with the evidence of Professor Breslin and Dr Burns the Tribunal was materially assisted by hearing from both specialists at the same time. At the outset both neurologists agreed that the deceased had progressive dementia. The dispute between them was as to whether the deceased simply had Alzheimer’s disease or whether there was a vascular dementia as well.
13. The Applicant’s case was put by Dr Corbett thus:-
“I have no doubt that he had Alzheimer’s disease. Based on Dr Rosenfeld’s observations, I have difficulty accepting that he hasn’t had at least one small cerebrovascular event. So, by definition, I think he has a mixed Alzheimer and vascular dementia. Now, you could argue about the varying contributions of the two sites.”
14. Professor McLeod conceded on the basis of medical records that the deceased could have had two strokes (ie. cerebrovascular accidents) although he doubted it. Both neurologists agreed that if the deceased had had two “strokes” caused by vascular disease the deceased could have had a number of little strokes that were not reported.
15. Professor McLeod also stated that the progression of the deceased’s dementia was rapid for Alzheimer’s disease alone but a more rapid course is indicative of a mixed Alzheimer’s and vascular dementia.
16. Whereas Professor McLeod’s final conclusion was that there was insufficient evidence from the records to say whether or not the deceased ever did have a stroke or strokes, he conceded the records were suggestive of a cerebral ischaemic event.
17. Taking the evidence of both Professor McLeod and Dr Corbett together we find that although doubted by Professor McLeod, there has been raised the hypothesis that the deceased veteran died as the result of a progressive dementia, which was a combination of Alzheimer’s disease, and vascular dementia.
18. The Respondent conceded that there was no statement of principles (SoP) in existence regarding death from dementia. The provisions of s120(A) therefore do not apply to this application and the Tribunal is able to consider the matter free from the artificial constraints imposed by the SoP regime and make a decision based on the available evidence and current medical opinion. As was pointed out in Spencer v Repatriation Commission 34 AAR 379, as there is no “head” SoP, intermediate SoPs such as the SoP for cerebrovascular disease do not have to be considered.
19. Dr Corbett in his report of 12 April 2003 (exhibit A4) states:-
“The veteran’s cigarette smoking and excessive alcohol consumption are both significant risk factors for cerebrovascular disease. It is my opinion that he fulfils factor 5(k)(i) of the statement of principles concerning cerebral ischaemia. It is my opinion that the veteran’s excessive alcohol consumption may also have been a significant contributing factor to his dementia both as a cause of dementia and as a risk factor for cerebrovascular disease.”
20. Although in this matter there is no requirement for the Tribunal to have recourse to the SoP, we note that in Instrument Number 52 of 1999 which purports to replicate “sound medical-scientific evidence”, that among the factors for cerebrovascular accident are:-
“5.(e) regularly consuming an average of 250g/ of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; or
(k)for cerebral ischaemia only;
(i)smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation.”
21. We accept on the basis of Dr Corbett’s report and the SoP that ingestion of alcohol above a prescribed limit is a risk factor in cerebrovascular accident. If, as suggested in material before us, the deceased was drinking four standard drinks a day then, as pointed out by Professor McLeod the deceased would have exceeded the 250g of alcohol per week required by the SoP.
22. Dr Corbett in exhibit A4 refers to the deceased’s “excessive alcohol consumption” as a risk factor for cerebrovascular disease and, earlier in his report had taken a history from the Applicant that the deceased veteran drank six to eight schooners of beer per night plus a few nips of spirits.
23. A difficulty in this matter was that when the Applicant gave evidence she had recently been released from hospital and it was clear, as she herself admitted that her memory was no longer accurate. Also statements attributed to the Applicant appear to have been drafted by other persons and she has consented to them but now cannot fully explain them.
24. In a document signed by the Applicant on 28 September 1999 she purports to say “my husband commenced his drinking habit in the early days of army service..” In evidence to the Tribunal the Applicant said that the said statement was not in her handwriting and she now had no memory of it.
25. Document T7 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is an alcohol questionnaire signed by the Applicant and also dated 28 September 1999. In that document the Applicant says that her late husband began to consume alcohol on a regular basis “shortly after joining the army in 1943” and that his reason for doing so was “the stress of army life – he was from a quiet family and the use of alcohol eased the stress” his consumption he said to have been every day “when available”.
26. Exhibit A6 is the statement by the Applicant dated 21 August 2003. In that statement the Applicant says:-
“My husband Bill, drank very little before he went into the army. He would go out with the boys every now and then and have a middy of beer.. Bill only did this occasionally, and he was not a heavy drinker at all.
When he returned from service, I noticed a big change in Bill’s drinking. He would drink every night on his way home from work. He would go to the pub with his mates and have a few drinks. I did not go with him, so I do not know exactly how many drinks he would have, however, I recall him mentioning to me at some stage that he drank between six and eight drinks each night. I do not know whether he meant middies or schooners.
I considered my husband to be a heavy drinker after he returned from service. He would drink every night after work, and this increased once he started working on the Mirror (a newspaper). He was never intoxicated when he returned home after drinking at the pub. It’s hard to explain how I knew he had been drinking, but I could always tell….
I never asked Bill why he drank the way he did because it was a sensitive issue, and I did not feel that I should mention it….”
27. Dr Corbett in exhibit 4 took a history from the Applicant that reads “she states that his drinking began shortly after leaving the army…”
28. In the final paragraph of her statement the Applicant said that she never asked her husband why he drank but in evidence she said that her late husband had said to her “you don’t know the pressure we were under” and that “they” had been supplied with a certain amount of liquor.
29. The deceased enlisted in 1943 when he was 25 years old. On his army record of service (see T3p4) his occupation is given as “Radio Script Writer”. After discharge he apparently found employment as a journalist on a Sydney newspaper.
30. After enlistment and recruit training the deceased was allocated to the Australian Army Service Corp and trained as a clerk. His service was entirely within Australia until 28 March 1945 when he arrived at Moratai, where he remained for approximately 11 months. At no stage of his army service was the deceased in a combat unit.
31. A perusal of the deceased’s army service records shows no disciplinary offences nor are there any hospitalisations except for an upper respiratory tract infection when undergoing training. There is no history of any form of psychiatric illness either during or after service.
32. The Applicant’s latest statement evidences that the deceased did drink alcohol before enlistment in the army. At the time of his enlistment he was in his mid twenties, married and socially active and therefore could not be said to be an impressionable young man straight from school or the bosom of his family. Nor is there any suggestion of any religious or other conviction, which might have suggested that it would have needed some significant external impetus to cause the decease to begin to take alcohol. There is nothing to suggest that during his period of war service the drinking of alcohol, whether or not in moderation became habitual with the deceased.
33. In this regard we note that the Applicant’s evidence was that alcohol was supplied to the deceased. We know from numerous other cases in the Veterans’ Division of this Tribunal that at times, particularly towards the end of the war, there were issues of beer to troops but at all times this was irregular and limited.
34. After discharge, and particularly while working as a journalist, the deceased drank. Just how much he drank is uncertain but it is entirely logical to accept the Applicant’s statement that:-
“As the income from civilian life improved there was more money for beer and the drinking habit increased.”
35. There is nothing in the sparse material before us regarding the deceased’s war service that would cause us to accept that any aspect of that service caused him to develop a habit of indulgence in alcohol. There is no suggestion the deceased was addicted to alcohol or alcohol dependent as opposed to someone who drank at the end of a day’s work. No doubt as a journalist he not only found the bar of a public house convivial but also a source of information.
36. Whereas a hypothesis linking the deceased’s ingestion of alcohol with war service can be said to have been raised by the material before us, we are satisfied beyond reasonable doubt that his continuing to drink alcohol post service was in no way caused or contributed to by the incidence of his war service.
37. Smoking tobacco has been recognised both by the SoP and by Dr Corbett as a risk factor in cerebrovascular accident. There is however conflicting evidence regarding the deceased’s smoking habit.
38. Originally the Applicant stated that her late husband did not smoke (see T5p10) although stating that he did consume alcohol. In a statement made at the time of her application to the Veterans’ Review Board she said that her earlier statement was incorrect and that the deceased had started to smoke in the army and continued to smoke until his final admission to hospital.
39. We find it difficult to understand how the Applicant can say that she did not wish to admit that her husband had a smoking habit in order to “safeguard his reputation” when she did claim that he drank alcohol to excess. The Applicant also said in her statement “now that I realise that this could have been a cause of his death I wish to correct this answer”. Given the Applicant’s age and apparent difficulty of recollection we find we cannot make any findings based on her recollections.
40. At document T12p35 is a report by a Dr Kearney dated 15 August 2001 which states inter alia:-
“As requested I have perused the file and dusted off my memory. Wilton and I can confirm he was indeed a dedicated heavy smoker.”
41. Dr Kearney was not called in these proceedings and exhibit R8 states that Dr Kearney’s practice has been unable to locate a file in the name of the deceased. Given the lack of any file and that Dr Kearney was giving his opinion some nine years after the death of the deceased, we are not persuaded by his report that the deceased continued to smoke.
42. We regard the best evidence as to the deceased’s smoking habits to be what he himself said. Thus on 18 March 1969 a medical practitioner employed by the then Repatriation Department recorded the deceased as not smoking. (the entry being “tobacco NIL”).
43. On 11 September 1978 the deceased was examined by Dr Sibree cardiologist regarding possible ischaemic heart disease. That specialist medical practitioner records the deceased as being a non-smoker.
44. Whereas the Applicant has stated that the deceased would not tell the truth to an examining medical practitioner about his smoking, the deceased was an intelligent man who according to the Applicant was well aware of the dangers of smoking. We do not accept that when being examined for possible ischaemic heart disease he would fail to mention to the examining cardiologist a smoking habit. He certainly revealed his alcohol ingestion.
45. A further pointer against the deceased continuing to smoke is the absence of any functional abnormality in the deceased’s lungs when examine in 1965, 1969, 1978, 1990 and 1991, see paragraph 9 above.
46. We are satisfied beyond reasonable doubt that the deceased had ceased smoking at least by 1969 and that therefore any smoking habit did not cause or contribute to any cerebrovascular accident.
47. The nett result of the above findings is that whereas there exists a hypothesis that the death of the deceased veteran was caused by a dementia, which was partially as a result of cerebrovascular ischaemia, no part of that ischaemia was caused or contributed to by his war service. The decision under review is therefore affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of MR S M ALLEN, SENIOR MEMBER AND DR THORPE, MEMBER
Signed: .......................................................................................
AssociateDate/s of Hearing 10 September 2003
Date of Decision September 2003
Counsel for the Applicant Mr Mark Vincent
Solicitor for the Applicant Dibbs Baker Gosling
Counsel for the Respondent
Solicitor for the Respondent Mr Michael Ryan
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