Brush and Repatriation Commission
[2000] AATA 366
•12 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 366
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/498
VETERANS' APPEALS DIVISION )
Re NORMA MARY BRUSH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date12 May 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely:
THAT Norma Mary Brush is entitled, pursuant to section 13 of the Veterans' Entitlements Act 1986, to pension as a result of the war-caused death of Charles Brush, deceased, as and from the 18th day of March 1997.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Death of Veteran. Three hypotheses raised. Failure of hypotheses to fit the template created by relevant Statements of Principles. Therefore not reasonable hypotheses and Tribunal deemed to be satisfied beyond reasonable doubt death not war-caused.
Veterans' Entitlements Act 1986 - s6A, subss120(1) and (3), s120A
Repatriation Commission v Deledio 83 FCR 82
Keeley v Repatriation Commission [2000] FCA 532
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors [2000] NSW CA 65
McKenna v Repatriation Commission 29 AAR 70
Treloar v Australian Telecommunications Commission 26 FCR 316
REASONS FOR DECISION
12 May 2000 Senior Member M D Allen
The Applicant is the widow of Charles Brush, deceased, who was a Veteran who had operational service as that term is defined in s6A of the Veterans' Entitlements Act 1986 (VEA).
By application lodged 6 April 1999 the Applicant sought review of a decision by a delegate of the Respondent dated 16 June 1997, and affirmed by a Veterans' Review Board on 7 December 1998, that the death of her late husband was not due to his war service.
As the late Mr Brush had operational service, the standard of proof to be applied in this matter is that provided by subss120(1) and (3) of the VEA. Subsection 120(6) of the VEA states that there no onus of proof upon either party to this review.
Because the Applicant's initial claim was lodged with the Respondent post 1 June 1994, a reasonable hypothesis for the purposes of subsection 120(3) can only exist if the said hypothesis conforms with a so-called Statement of Principles (SOP) determined by the Repatriation Medical Authority that upholds the said hypothesis – see s120A of the VEA.
Subsection 120(1) reads inter alia:
"(1)Where a claim under Part II for a pension in respect of the … death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that … the death of the veteran was war-caused, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."
Whereas subs120(3) reads:
"(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
that the injury was a war-caused injury or a defence-caused injury;
that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
The relationship between subss120(1) and (3) and the SOP was explained by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at p97, namely:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
Paragraph 119(1)(h) of the VEA states:
"without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
That paragraph assumes importance in this matter as, for whatever reason, there is a dearth of records relating to the late Mr Brush. His entry medical exam was cursory, explained no doubt by the fact he enlisted in the Papua and New Guinea Volunteer Rifles at Lae in the then mandated Territory of New Guinea on 5 February 1941. What is surprising, however, is that the record of his service is sparse and there is no record of any medical examination upon discharge. I was informed from the bar table that parts of Mr Brush's files at the Department of Veterans' Affairs are missing and, in addition, no attempt seems to have been made by the Respondent to search for any information, for example reports from local medical officers during the period 1959-1980. Paragraph 119(1)(h), however, does not permit the Tribunal to create evidence or put suspicion and conjecture in the place of evidence
I also note that the late Veteran was at one time employed by the Department of Navy at HMAS Creswell. Archives may well have a report of the pre-employment medical examination and employment history including sick leave certificates but no attempt has been made to seek any such information.
When the matter came on for hearing before me on 19 April 2000 the following documents were tendered and taken in as exhibits, namely:
T1 – T26: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1: Applicant's Statement of Facts and Contentions dated 24 September 1999
Exhibit A2: Statement of the Applicant dated 20 July 1999
Exhibit A3: Further Statement of the Applicant dated 7 December 1999 plus attachments
Exhibit A4: Extract from appeal to War Pensions Assessment Tribunal dated 19 July 1969
Exhibit A5: Extract from appeal to War Pensions Assessment Tribunal dated 6October 1970
Exhibit R1: Respondent's Statement of Facts and Contentions dated 6October 1999
Exhibit R2: Extract from MIMS
Document T12 is the Death Certificate relating to Mr Brush. The certified causes of death are:
"(I) a) Cerebral arteriosclerosis years
(II) Ischaemic heart disease years."
That certificate is added to by a report from a Dr Mathews at Document T19. In that report dated 13 May 1998 Dr Mathews states inter alia:
"He was treated for hypertension subsequent to anxiety state related to his war service.
He had a cerebrovascular accident on 18th September 1996.
He had severe restriction of mobility & required a walking frame.
He was not able to undertake vigorous or moderate activity.
He was on treatment for hypertension.
His cause of death was cerebro arteriosclerosis & ischaemic heart disease relating to long standing hypertension."
The Applicant advanced two hypotheses in support of her case. They are:
(i)that the late Veteran suffered hypertension as a result of a service induced consumption of alcohol which in turn led to his ischaemic heart disease; and
(ii)that the disabilities of bilateral degenerative changes in the metatarsophalangeal joints of the great toe and dystrophic changes in the left toe nails, which disabilities were accepted as war-caused, prevented the Veteran undertaking more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of ischaemic heart disease or his cerebral arteriosclerosis.
Although the Death Certificate does not state that the Veteran's death was caused by a cerebrovascular accident, the Applicant's uncontradicted evidence was that the Veteran suffered a cerebrovascular accident in 1996 from which he never fully recovered. He was cared for in a nursing home being severely disabled with little to no cognitive faculties. He was ultimately given Morphine to ease pain and, on 17 March 1997, died. In these circumstances I find as a fact that the operative cause of death was a cerebrovascular accident which was of course caused by the deceased's cerebral arteriosclerosis.
At the time the Respondent made its initial decision, the Statements of Principles in force and applicable to this matter were Nos 142 of 1996 relating to Cerebrovascular Accident, 140 of 1996 re Ischaemic Heart Disease and 83 of 1995 re Hypertension. As is made clear by the decision of the Full Court of the Federal Court in Keeley v Repatriation Commission [2000] FCA 532, it is those SOPs which are to be applied by the Tribunal when it considers the Applicant's claim.
Document T3 discloses that the Veteran enlisted in the PNGVR on 5 February 1941, in Lae, at the age of 29 years. The Applicant stated that Mr Brush, who was an aircraft engineer, had gone to New Guinea in 1939. She met her late husband briefly in 1942 and again met him in 1946 as he was friendly with her brother-in-law. Mr Brush had returned to Papua New Guinea in 1947-49 but they had corresponded. When he returned from Papua New Guinea she had seen him as he had commenced to see her sister and brother-in-law again.
At this time the Applicant was not favourably disposed towards Mr Brush as he was a heavy and regular drinker of alcohol. In particular, he used to drink with the Applicant's brother-in-law whilst playing cards. In Exhibit A2 the Applicant states, of the Veteran's drinking:
"3.… Between 1950 and 1953 he drank regularly at least 5 nights a week. On Saturdays he would drink into the early hours of Sunday morning.
4.On the occasions he drank he consumed at least 5 or 6 glasses of beer a day and more on a Saturday night. I believe there were about 10 grams of alcohol per glass.
5.…
9.Charles did not discuss the effects that his drinking had on him. He continued to drink even though it caused visible problems. Unfortunately I am not able to provide a history, nor to identify others who could provide a history of my late husband's alcohol intake prior to my meeting him in 1942.
10.During the period between 1950 and 1953 I saw that Charles' drinking was getting out of hand. He didn't become violent at all when he drank, but I knew that the amount that he was drinking would have a serious effect on his health. …"
On being questioned why he drank, the Veteran told the Applicant that by drinking he found it easier to forget the things that happened during the war.
In 1953 the Veteran ceased drinking heavily. Apparently he had a "good talk" with his mother and family doctor. Also the Applicant had told him that she would not marry him unless he gave up drinking. Although the records are contradictory in that in some they record Mr Brush as a non-drinker, as opposed to a social drinker, I accept the Applicant's evidence the he ceased a pattern of heavy drinking in 1953.
The Applicant's evidence was that her late husband told her "just after the war" that he was taking medicine to control his blood pressure. He was still taking tablets to control his blood pressure when they were married and she clearly remembers the Deceased's local medical officer prescribing blood pressure tablets for him when they lived at Nowra.
Given the dearth of recorded information in this matter, I accept the Applicant's evidence that her late husband was being treated for hypertension in the immediate post-war years and that this treatment continued at least until 1979 when he had coronary bypass surgery.
To say that I accept as a fact that the Veteran had hypertension, is not to say I am satisfied that the hypertension was war-caused.
If, as suggested by the Applicant, the Deceased's hypertension was caused by his alcohol consumption, that hypothesis must fit the "template" created by the relevant SOP.
Instrument No 83 of 1995 reads inter alia:
"1.…
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;"
Clause 4 of the said SOP reads;
"For the purposes of this Statement of Principles:
'accurate determination of hypertension' generally means the accurate measurement of blood pressure on a number of occasions. As stated in The Management of Hypertension: a consensus statement
The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain accurate measurement of blood pressure, the conditions for measurement should be standardised as much as possible before readings by ensuring the following:
a mercury sphygmomanometer should be used in the diagnosis of
patients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypotension;
the bare arms should be supported and positioned at heart level;
a cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. The bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
the cuff should be snugly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
· in older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudo-hypertension);
· the cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
· if initial readings are high, several further readings should be taken after five minutes of quiet rest;
· on each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;"
In this matter, on the material before me, I am satisfied, and so find, that the deceased Veteran did suffer from hypertension. I note that he had, belatedly, an anxiety state accepted as being due to war service. No documents were made available relating to the investigations which led to that decision. No doubt reports obtained from psychiatrists would have referred to incidents during the service of the Deceased that he found stressful and which caused his anxiety state. I accept also the Applicant's evidence that her late husband stated he drank in order to forget things that happened during the war. My experience in this Tribunal is that many veterans who have war-caused psychiatric conditions self medicate by the use and abuse of alcohol. Had there not been in place a so-called Statement of Principles, I would have found that a reasonable hypothesis exists that the Deceased returned from active service with an undiagnosed anxiety state, as a result of which he drank excessively and this in turn caused his hypertension which was established when he ceased his pattern of destructive drinking.
Unfortunately for the Applicant, this hypothesis cannot fit within the template of Instrument No 83 of 1995. For example, according to paragraph 4 of Instrument No 83 of 1995, an accurate determination of hypertension has not been established. Apparently for the Repatriation Medical Authority it is not sufficient that a veteran's medical practitioner diagnoses hypertension and prescribes medicine for that condition. A totally artificial standard more in keeping with a clinical test in a major teaching hospital has to be conducted. How any veteran's widow is supposed to meet this criteria I do not know. Apart from anything else, it seems to me that Instrumentss 83 of 1995 and 25 of 1999 are totally contrary to paragraphs (f), (g) and (h) of subs119(1) of the VEA.
It may well be that Instruments Nos 83 of 1995 and 25 of 1999 are ultra vires in that the Repatriation Medical Authority has not contented itself in deciding which theories of causation of a disease are consistent with medical opinion but have gone further and prescribed clinical tests which must be carried out in order to support and thus create a reasonable hypothesis. For a discussion of the proper limits of the powers to be exercised in making a Statement of Principles, see the decision of the New South Wales Court of Appeal in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors [2000] NSW CA 65.
Given the uncompromising dictates of Instruments Nos 25 of 1999 and 83 of 1995, I cannot be satisfied that a reasonable hypothesis exists linking the Deceased's diagnosed condition of hypertension with his war service. As the Deceased's hypertension cannot be linked with his war service, then the hypothesis that his hypertension was causative of his ischaemic heart disease or cerebrovascular accident cannot be applied – see McKenna v Repatriation Commission 29 AAR 70.
The other hypotheses contended for by the Applicant were that the Deceased's accepted disabilities of bilateral degenerative changes in the metatarsophalangeal joints of the great toe and dystrophic changes in the left toe nails prevented him undertaking more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of either ischaemic heart disease or cerebrovascular accident.
Instrument No 142 of 1996 re cerebrovascular accident gives, as a factor connecting cerebrovascular accident with service, the following in paragraph 5(c):
"an inability to undertake vigorous or moderate physical activity for a continuous period of at least five years immediately before the clinical onset of cerebrovascular accident;"
Cf Instrument No 140 19969 re ischaemic heart disease where factor 5(g) reads:
"an inability to undertake moderate or vigorous physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease;"
Instrument No 142 of 1996 defines "vigorous or moderate physical activity" as meaning:
"physical activity greater than 3 METS, where a 'MET' is a unit of measurement of the level of physical exertion, or no greater than 2.5 k/cal per minute. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. (A MET approximates to the energy required to rest quietly in bed. A 70 kg man would use about 3 METS when walking at 4 km per hour.)"
Cf Instrument No 140 of 1996 Ischaemic Heart Disease, which defines "moderate or vigorous physical activity" as:
"physical activity greater than 3 METs, where a 'MET' is a unit of measurement of the level of physical exertion equalling 3.5 ml of oxygen per kg of body weight per minute;"
In the Guide to the Assessment of Rates of Veterans' Pensions (GARP) Fifth Edition prepared pursuant to s29 of the VEA, Scale 1.1 at p23 gives examples of activity levels with energy expenditure in METS. For example activities requiring 2-3 METS include:
Light household duties.
Walking slowly (3.5 km/h).
Cooking or preparing or preparing meals.
Playing billiards.
Clerical work which involves moving around.
Driving power boat.
Washing dishes.
Dressing, showering.
Lawn bowls.
Driving car.
Whereas, under the heading "3-4 METs", the following activities (amongst others) are cited:
Walking at average walking pace (5 km/h).
Golf (pulling buggy).
Cleaning car (excludes vigorous polishing).
Minor car repairs.
Tidying house.
Cleaning windows.
Pushing light power mower over flat suburban lawn at slow steady pace.
Vacuuming.
Shifting chairs.
Light gardening (weeding and water).
Making bed.
Document T5 is a report to the Deceased's local medical officer dated July 1988, after the Deceased had been reviewed by neuro-physician Dr Corbett on 28 June 1988. That report states inter alia:
"He retired in 1979 following a coronary artery bypass graft."
Although the Applicant gave evidence that her late husband had worked as a cleaner at HMAS Creswell for six years, no date is given for his retirement from that position. The Applicant's evidence is that the Deceased, after retirement, used to "potter around the farm", being the hobby farm he and the Applicant had purchased when they moved to Nowra in 1959.
In this regard I note also the Applicant's evidence that the farm referred to was, as stated, a hobby farm consisting of only a few acres upon which they ran pigs at one stage but later simply became an area for the agistment of the children's horses. The reference by a Review Officer of the Respondent at Document T23, in which he refers to the Deceased Veteran as a "self-employed farmer", is a total misrepresentation of the facts of this matter.
Document T22 contains a series of extracts from the Deceased's files at Repatriation General Hospital, Concord. At page 47A the Deceased's blood pressure is given at 140 over 80 as at 9 August 1971. It would seem from those documents that no diagnosis was made of ischaemic heart disease at that time. Consequently I can only conclude, on the information available to me, a diagnosis of ischaemic heart disease was made some time in 1979.
If, as stated by the Applicant, the Deceased was until then pottering around the farm then it would seem that he was at least exerting 3 METs given the description of activities said to require that amount of exertion in Table 1.1 of the Fifth Edition of GARP. I am therefore not satisfied that the Deceased met Factor 5(g) in Instrument No 140 of 1996.
The Deceased had a cerebrovascular accident on 18 September 1996. In having regard to the Deceased's inability to undertake more than "vigorous or moderate physical activity", I must have regard to his abilities in the five years prior to that time. That is to say, in the period back to 18 September 1991 (Factor 5(c) of Instrument No 142 of 1996).
Whereas I am satisfied that the Deceased was markedly disabled during this period, that disability was due to factors other than his crippled feet. No doubt the Deceased's ischaemic heart disease and consequent surgery played a part but, given the very low level of activity required to expend 3 METs, I do not accept that it was the major cause of his inability to undertake exercise. Indeed, there is no evidence that the Deceased's coronary bypass operation was anything but successful.
In a written submission lodged with the Tribunal after the hearing in this matter, the Respondent's advocate referred to the Deceased's dementia. Certainly a report dated 2 October 1994, from Lady Davidson Hospital, refers to the Deceased having suffered from Altzheimer's disease "for the last 12 months".
In a report dated 28 April 1998, the Deceased's general practitioner, Dr Summerbell, stated inter alia:
"Mr. Brush attended my surgery from 26.9.1989 until 15.5.1995. He had undergone coronary bypass surgery in 1978 (by Dr Sandy Grant) at Royal Prince Alfred Hospital.
…
He had difficulty with mobility due to arthritis in his feet.
He was unable to undertake any moderate activities at any time while under my care, aggravated by his increasing senile dementia."
A report from Dr JCA Davies, Consultant Psychiatrist, dated 3 December 1993 reads inter alia:
"He told me that he now has anxiety state accepted by the Department of Veteran Affairs. At one time he was said to be suffering from dementia, but at both my examinations there was no evidence of this, however, he suffered from quite severe anxiety."
Dr Davies continued:
"He was no longer able to do little jobs around the house and regrets that at one time he used to be able to paint the roof and do the outside of the buildings but now he is unfit to climb a ladder."
No time is given as to when the "little jobs" referred to by the Deceased were in fact carried out by him. The report of Dr Davies does not conflict with the advice from Dr Summerbell that whilst in his care, the Deceased was unable to undertake any moderate activities.
Dr Davies' report was made in 1993. I therefore do not regard it as detracting from the later reports that refer to the Deceased as suffering from an age related dementia which debility affected his ability to undertake activity. I note that Dr Mathews, at Document T19, refers to the Deceased as having been an inmate of Hammondville Nursing Home from July 1995.
As I see the evidence before me, the Deceased did have an incapacity to undertake vigorous or moderate physical activity in the five years preceding his cerebrovascular accident. The cause of that inability was multi-factorial. His accepted disabilities of injury to his feet and his anxiety state, coupled with his solar keratoses, would have made a real contribution.
The Full Court of the Federal Court pointed out in Treloar v Australian Telecommunications Commission 26 FCR 316 at 323 that any contributing factor to a disease must be established on the balance of probabilities but once established as in fact and truth as contributing, it matters not that the contribution be large or small. Similarly, in this case it has been established on the balance of probabilities, and I so find, that the Deceased's accepted disabilities contributed to his inability to undertake vigorous or moderate physical activity in the five years preceding his cerebrovascular accident.
I am therefore reasonably satisfied that material has been raised so as to give rise to a reasonable hypothesis connecting the death of the Deceased Veteran with the circumstances of his service by way of a war-caused cerebrovascular accident.
A reasonable hypothesis having been raised, there is no material which satisfies me beyond reasonable doubt that there are grounds for determining that the death of the Veteran was not war-caused.
The decision under review will be set aside and the Tribunal substitutes its decision, namely that the Applicant is entitled to pension as a result of the war-caused death of Charles Brush, deceased, as and from 18 March 1997, the following the death of the said Veteran.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDate of Hearing 19 April 2000
Date of Decision 12 May 2000
Solicitor for the Applicant Mr N Dawson, R L Whyburn & Associates
Advocate for the Respondent Mr P Godwin, Department of Veterans' Affairs
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