Byatt and Repatriation Commission [2011] AATA 170

[2011] AATA 170

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 170

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/3159

VETERANS’ APPEAL DIVISION		)
Re		DULCIE BYATT

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member B J McCabe

Date 16 March 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[SGD]............................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – war widow’s pension - demyelinating disease of the central nervous system – multiple sclerosis – decision affirmed.

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

1.      

Cyril William Byatt served in the Australian Army during World War II. He died on 1 October 1966. The cause of death was listed on the death certificate as:

“1(a) demyelinating disease of central nervous system (many months)”. Mr Byatt’s widow says that her late husband’s death was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”). She applied for a widow’s pension on that basis. Her claim was unsuccessful and she has asked the Tribunal to reconsider the matter. 

2.      I am not satisfied the late veteran’s death can be linked to his service in the Army. I explain my reasons below.

The factual background and diagnosis

3.      Mr Byatt served as an infantryman in the Middle East and in New Guinea. It appears he suffered from a number of health conditions during the course of his service, including ulcers (for which liability was accepted) and perhaps malaria. He died in 1966 at the age of 56. The death certificate refers to “demyelinating disease of central nervous system”.

4. Both sides rely on Dr Casperson’s analysis of the death certificate in the course of their written submissions. That analysis is set out at p 18 of the s 37 documents. Dr Casperson says that the most common form of demyelinating disease of the central nervous system is multiple sclerosis (“MS”) but adds that the cause of the disease in this case is unknown. Given that MS is the most likely cause of the condition, and I have not been provided with evidence of any other cause, I think I am justified in concluding that the cause of death for the purposes of the Act was MS.

Reasonable hypothesis?

5.      Having identified the cause of death as MS, I must decide whether there is a reasonable hypothesis connecting the veteran’s death with the circumstances of his service. In other words, is there any basis for forming the view that Mr Byatt’s MS was brought on by something connected with his service in the Army? I note the relevant statement of principles (“SoP”) is No 44 of 2002 (as amended by No 76 of 2002).

6.      I use the words “any basis” advisedly. The courts have emphasised that it is not enough to speculate that something might have occurred, or to say that the possibility of something occurring cannot be excluded. There must be evidence that actually points to the conclusion. I think that is where this case runs into difficulty.

7.      There is no evidence that the late veteran suffered from MS during the course of his service. It appears the condition only took hold in the months before his death. It follows there can be no suggestion that the circumstances of his service prevented him from obtaining appropriate clinical management of MS: factor 5(c) of SoP No 44 of 2002. There is also no evidence that the veteran was infected with the Epstein-Barr virus. The applicant’s submissions suggest the late veteran probably was exposed to organic solvents, and that may be so – but the evidence cannot justify a conclusion that the late veteran was exposed to organic solvents on more days than not during a continuous 12 month period before the clinical onset of MS. As the applicant’s advocate concedes: “We are however unable to quantify the extent of exposure he would have experienced…”.

Conclusion

8.      I do not think there is evidence pointing to an hypothesis linking the late veteran’s death with the circumstances of his service. The passage of time between Mr Byatt’s death and these proceedings make it difficult to understand what may have contributed to his death. Perhaps events during the course of his service played a role, but we do not have reliable evidence to that effect. In those circumstances, the decision under review must be affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .................[SGD]..........................................................
  Kerri Smith

Date of Hearing   Hearing on Papers
Date of Decision  16 March 2011