Cameron and Repatriation Commission
[2004] AATA 570
•4 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 570
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/565
VETERANS' APPEALS DIVISION )
Re JEANNE CAMERON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date4 June 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of the veteran, Rupert Cameron, was war-caused with effect from 3 January 2001 and that the applicant, Jeanne Cameron, is entitled to a war widow’s pension with effect from 3 January 2001.
...................(Sgd).......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – ischaemic heart disease – reasonable hypothesis established connecting veteran’s death with war service – veteran suffered from service-related pulmonary tuberculosis - connection between treatment for tuberculosis and weight gain – veteran’s obesity contributed to his ischaemic heart disease – decision set aside
Veterans’ Entitlements Act 1986 ss 8, 13, 14, 120B(3), 196B(3), 196B(14)
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
4 June 2004 Mr IR Way, Member 1. This is an application by Jeanne Cameron for review of a decision of the Repatriation Commission made on 24 April 2001 and affirmed by the Veterans’ Review Board (“VRB”) on 25 April 2002, that the death of the applicant’s late husband, Rupert Cameron (“the veteran”), was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) (Exhibit 1) and other documentary evidence as follows:
Exhibit A1 Statement of Jeanne Pauline Cameron dated 4 April 2003
Exhibit A2 Report of Dr Pat Aldons dated 26 June 2003
Exhibit A3Letter to Dr Aldons dated 4 July 2003 from DVA requesting clarification of report together with updated report of Dr Aldons dated 14 July 2003
Exhibit R1Prince Charles Hospital Notes
Exhibit R2Clinical notes and reports – Dr John Kiss – 1983 onwards
Exhibit R3Referral letter dated 24 July 2003 to Dr Helen Healy together with report of Dr Healy dated 26 November 2003
Exhibit R4Report of Dr Peter Grant dated 25 September 2003
3. Ms B Carter-Nicoll of Counsel, instructed by Madden & Co, represented the applicant. Mr B Williams, Departmental Advocate, represented the respondent. Mrs J Cameron gave oral evidence and Dr H Healy gave evidence by telephone.
4. Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependents of a veteran, where the death of the veteran is war-caused. A dependent of a deceased veteran, including a widow, may make a claim to a pension under section 14 of the Act.
5. The veteran rendered eligible war service in the Australian Army from 13 January 1942 to 9 February 1945 in New South Wales and Queensland. The veteran was discharged from the Army medically unfit on 9 February 1945 because of pulmonary tuberculosis.
6. The veteran’s accepted service-related disabilities at the time of his death were:
· Pulmonary tuberculosis
· Chronic tonsillitis
and his non-service-related disabilities were:
· Appendicitis
· Asthma
· Coronary heart disease
· Anxiety State
· Hiatus Hernia
· Bronchitis (no jurisdiction)
· Death
7. The veteran’s service was not operational service and accordingly section 120(4) of the Act requires the Tribunal, in making a determination or a decision on the applicant’s claim, to determine the matter to its reasonable satisfaction, applying the civil standard of proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
8. Section 120B(3) relevantly provides:
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3)…; or …
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
9. Where there is a Statement of Principles (“SoP”) made under section 196B(3) the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran’s death and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran’s death is, on the balance of probabilities, connected with the veteran’s service: section 120B(3)(b). This last question must also be determined to the reasonable satisfaction of the Tribunal.
10. The veteran was born on 19 September 1923 and died on 2 January 2001, aged 77 years. The veteran’s death certificate showed the cause of death as:
“1. Coronary artery disease (10 years). 2. Non insulin dependent diabetes, cerebrovascular accident.”
Contentions
11. The applicant contends that the veteran died because of ischaemic heart disease which was connected to his relevant service because of hypertension he suffered as a result of renal failure or renal disease which in turn resulted from service-related tuberculosis.
12. A further alternative contention emerged at the conclusion of the taking of evidence and in Ms Carter-Nicoll’s final submissions. This contention is that the applicant, because of his service-related tuberculosis was required, as part of the treatment for tuberculosis, to increase his daily dietary intake and that this in turn led to the applicant being obese, this contributing to his ischaemic heart disease.
13. The Tribunal is satisfied that the following Statements of Principles (SoPs) may be relevant to the consideration of this application:
· Ischaemic Heart Disease – Instrument No 54 of 2003 (noting that an earlier SoP may need to be considered, namely, Instrument No 38 of 1999)
· Hypertension – Instrument No 36 of 2003 (as amended by Instrument No 4 of 2004)
· Tuberculosis – Instrument No 82 of 1997
· Diabetes Mellitus – Instrument No 83 of 1999
· Cerebrovascular Accident – Instrument No 53 of 1999
14. Also relevant is the RMA Statement about the causes of “Being Obese” dated 16 August 1996.
15. At the conclusion of the hearing it became apparent that there was in existence an SoP, Instrument No 64 of 2001 Mesangial IgA Glomerulonephritis, with respect to disease of the kidneys and the Tribunal requested both parties, subsequent to the formal proceedings of the hearing, to consider and make written submissions on the relevance, if any, of this SoP. In those written submissions both parties agreed, and the Tribunal accepts, that Instrument No 64 of 2001 has no relevance in the consideration of this matter.
16. The relationship to service required by an SoP must be one of the relationships prescribed in section 196B(14) of the Act, namely:
“(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Applicant’s Evidence
17. The applicant provided a written statement dated 4 April 2003 (Exhibit A1) and gave oral evidence.
18. In summary, the applicant’s evidence was that she first met her husband in 1943 when they were both on leave in Brisbane; that when she first knew the veteran he was fit and energetic; and that they saw a lot of each other and walked a lot. She said he got sick about four months after she met him and he was diagnosed as suffering from tuberculosis and after a lengthy period of hospitalisation and treatment he was discharged from the Army in early 1945 because of this disease. She said they had married in June 1944 and she was also eventually discharged (after her husband’s discharge) to look after him while he was undergoing continuing treatment for tuberculosis.
19. The applicant told the Tribunal that it took her husband about a year after his discharge to recover, at which time they moved to Sydney where the veteran took two years to complete his apprenticeship (as a wood machinist). On completion of his apprenticeship, she said the veteran worked at a local grocery shop during which time he had difficulties because of depression, drank far too much and put on a massive amount of weight, reaching 16 stone in weight. She said that at this time she noticed that her husband spent a lot of time in the toilet. She also commented on him being irritable, nervy, bad tempered and “unenergetic”.
20. After about four years in Sydney the applicant said they moved to Warwick where her husband “did a little bit of anything he could find” (tractor/truck driving, fencing) until he gained employment in his trade in 1962 where he worked until he was dismissed in 1975. Subsequently, the applicant said the veteran, with her constant help, progressively built up a small cabinet building business and this business lasted for about seven years, the veteran stopping work in about 1983.
21. The applicant told the Tribunal that her husband had many health problems, including a nervous breakdown in 1962, hernia in 1971, prostate cancer, asthma (which caused a constant cough and made him susceptible to catching flu) and that for many years he had had heart pains. She said her husband had multiple heart bypass surgery in 1983 (at which time scarring was found from earlier heart attacks) and that the heart pain she referred to had occurred 15 years prior to surgery in 1983. She said her husband had a second heart bypass operation in 1995/96 and had a pacemaker inserted in 1996.
22. When asked whether her husband was better after his bypass surgery, the applicant said that the pain was relieved, however he still lacked energy and would not do what he was told to do.
23. With respect to the veteran’s dietary intake, the applicant in her written statement (Exhibit A1) said that the veteran was put on a diet of milk, beer and fattening foods as part of his treatment for tuberculosis. She said he was given beer to boost his appetite and that:
“5.After discharge he started to put on weight and he seemed to want to eat much of the time. This became a life-time habit of his. After discharge the beer was not necessary but he drank every day and quite often he was drunk.
…
6.…[H]e was discharged and remained on the ‘TB’ diet, his weight ballooned to around 16 stone. I believed this was brought about by excessive drinking to help him cope with his anxiety.
…
14.I often thought that his consumption of food was almost an addiction, which stemmed from the diet that he was placed on for treatment of TB, a symptom of his nervous condition or a physical need that may have been a symptom of diabetes. He was never able to properly control it, even when diagnosed as having diabetes at which time he made some effort to do so.
I believe that the fact that his father died of TB was subconsciously in his mind and that he felt bound to maintain the diet that he had been placed on by Repatriation Department.”
24. The Tribunal notes that on enlistment the veteran’s height was recorded as 5 foot 9 inches, weight 150 lbs (blood pressure 150/80); that in the six months prior to tuberculosis being diagnosed (January 1944) he lost about 1½ stone in weight; that on discharge he had put on weight and weighed 140 lbs, blood pressure 120/75; that his service records include:
25.2.57 Weight up. Blood pressure 140/90
6.4.64 Blood pressure 150/100
1.3.74 He is obese. Blood pressure 130/8011.8.78 Obese. Blood pressure 180/100;
and that Dr Best in June 1983, reported:
“This man’s weight has been stationary for many years. He restricts his diet to foods which apparently do not upset him and takes very little alcohol of late years but use [sic] to drink heavily.
…slightly obese.”
and that Dr Birrell (Consultant Physician) in November 1995 records the veteran’s weight at 88 kilograms (194 lbs).
Medical Evidence
25. Dr P Aldons, Consultant Physician, provided two written reports, one dated 26 June 2003 (Exhibit A2) and one dated 14 July 2003 (Exhibit A3). Dr Aldons was not available to give oral evidence.
26. Dr Aldons stated (Exhibit A2):
“In summary then, I believe this patient had TB and then, some time later, developed renal disease (whether as a result of the TB or not) which, in my view, led to the development of hypertension.”
27. In arriving at this summary Dr Aldons stated:
“As you know from our recent discussion he was perfectly well at the time of his enlistment in January 1942; he was diagnosed with pulmonary tuberculosis two years later in January 1944 – underwent treatment thereafter, and, at medical examination on 13 May 1944, was found to be quite well and his urine was clear; at further medical examination on 13 December 1944 it is documented that albuminurea was present, in fact a further highlight note ‘N.B. Urine examination: Considerable cloud of albumen noted.’ was made: Blood pressure at this time was normal. This is therefore absolutely uncontradictable evidence of renal disease in December 1944.
What, in fact, does this amount to in a young man aged 21 years? Proteinurea in the amount described strongly suggests an underlying glomerulonephritis with or without nephrotic syndrome – unfortunately we do not have the benefit of any further investigations eg quantification of the amount of protein in the urine to clarify this. Why is this finding important? The degree of proteinurie we now know to be a prognostic indicator in almost every pattern of glomerulonephritis. Macroalbuminuria, as described in this case, strongly suggests nephrotic syndrome, and the commonest aetiology of this in adults is membranous nephritis. In this condition the proteinuria is asymptomatic – in fact, at presentation, we now know they may not yet be hypertensive, they may or may not have microscopic haematuria, and they may or may not have evidence of renal impairment on biochemical testing. With regard to the aetiology of membranous nephritis per se we know that about 80% of all cases are idiopathic (no cause know); approximately 20% are secondary to drugs, carcinoma, immunological conditions, and infections (with hepatitis B & C, syphilis (congenital & secondary), and EBV infections the commonest). I am not personally aware of any cases occurring secondary to TB, however my renal colleagues at Royal Brisbane Hospital cannot see any reason why it should not occur. One would have to perform a literature search if it was important to document this. Patients with membranous nephritis invariably go on to develop hypertension but not necessarily chronic renal impairment – as is the case with our patient. Also a significant percentage go on to recover completely. The vast majority however fit somewhere in between.”
28. Dr Aldons also opined that:
“…Given his strong family history it is, of course, quite possible he was originally infected at home and then experience a re-activation of the disease two years later. However there is the possibility he may have been infected by one of his peers after enlistment – it is quite impossible to be certain.”
and that:
“…I do not believe his diet had any major role in his eventual demise. I believe the two areas worthy of close scrutiny are his TB and hypertension, particularly the latter.”
29. In the second report (Exhibit A3) Dr Aldons, in answer to questions put by the respondent, affirmed his view that the considerable cloud of albumin strongly suggests renal disease; that the subsequent development of hypertension indicated glomerulonephritis; and that in respect of tuberculosis causing glomerulonephritis, confirmed his earlier statement about aetiology and said:
“It is important to differentiate this from straight-out tuberculous infection of the kidney – what we are talking about in glomerulonephritis is an immunological sequel.”
30. Dr H Healy, Nephrologist, provided a written report dated 26 November 2003 (Exhibit R3) and gave evidence by telephone.
31. Dr Healy, while attaching significance to the finding of albuminuria in the veteran’s urine test of 13 December 1944, said that a single finding of albumin in the urine of unknown quantity is insufficient to diagnose renal disease or membranous nephritis; and on the balance of probabilities was unlikely to contribute to hypertension. Dr Healy highlighted the fact that following the single finding of albumin in 1944, there were no further tests undertaken until 1983 and at this stage the test carried out showed normal renal function. Furthermore, Dr Healy stated:
“2.6 if renal disease was present in 1944, were there any permanent sequelae?
There are no long-term data about renal function in the documents available to me to give an opinion. Further information about renal investigations done after 1944 and, preferably, prior to late 1970s would help to establish if there were any permanent sequelae.
Twenty to 40% of type II diabetics develop renal disease over a 10 year interval. Almost a quarter of the patients with cardiovascular disease or its risk factors in the HOPE Study (JF Mann et al Journal of American Society of Nephrology 2003; 14(3):641-7) and up to 10% of hypertensives have microalbuminuria. Therefore the most useful information would be prior to the emergence of hypertension around the late 1970s, cardiovascular disease in the early 1980s and diabetes in the late 1980s and the attendant risk of albuminuria.
However it is possible to say that if renal disease was present in 1944 it was not rapidly progressive and destructive because a Consultant Urologist, Dr Buckham, reported an IVP that was normal apart from a large residual in January 1997. If the renal disease had been rapidly progressive and destructive the IVP would show scarred and/or shrunken kidneys 52 years later. The report of the IVP does not exclude lesser degrees of renal damage.”
32. Dr Healy agreed that renal disease could be asymptomatic but more likely there would be symptoms of oedema and blood in urine. She agreed that lack of energy could also be apparent. However, in respect of the veteran spending a lot of time in the toilet, she said that frequency of going to the toilet was more significant than a long time being spent in the toilet.
33. Dr Healy opined that there is no evidence that the veteran suffered from chronic renal tuberculosis, there being no evidence of structural change or scarring of the kidney; and the veteran not suffering from tuberculosis after being successfully being treated for tuberculosis in the 1940s.
34. In essence, it was Dr Healy’s opinion that, on balance, the veteran did not suffer from renal disease as a result of suffering tuberculosis in the 1940s and, on balance, that the veteran’s hypertension could not be linked to his tuberculosis.
Submissions and Consideration
35. There is no dispute between the parties, and the Tribunal accepts, that the veteran’s cause of death was ischaemic heart disease (“IHD”).
36. In her final submissions, Ms Carter-Nicoll said the applicant was relying on factors 5(c) and 5(a) of the SoP for IHD, namely, that the veteran was obese for a period of at least two years within the 15 years immediately before the clinical onset of IHD in 1983 and/or the veteran suffered from hypertension before the clinical onset of IHD.
37. Both parties agreeing, the Tribunal accepts that the veteran suffered from tuberculosis and that this condition had a clinical onset during his service in the Army during World War II.
38. Central to the applicant’s case is the contention that it was the veteran’s tuberculosis which caused him to suffer renal disease which in turn caused him to suffer hypertension; and that it was a result of the diet he was placed on during his Army service (because of his tuberculosis) that he had an increased dietary intake which led to his being obese.
39. Clearly a crucial issue in this matter is whether the veteran suffered from war-caused tuberculosis.
40. The Tribunal is mindful that the veteran’s condition of tuberculosis was accepted as war-caused in 1944 and that acceptance of the veteran’s tuberculosis was based on a Medical Board opinion to that effect at that time.
41. The Tribunal is also mindful that if a veteran has died from a disease that has already been determined by the Commission to be war-caused, the death is taken to have been war-caused and section 120B does not apply. It is within this context, when faced with the fact that the veteran’s tuberculosis was an accepted war-caused disability from 1944, that the Tribunal has taken the view that it is not appropriate to now revisit the question of whether there is a causal relationship between the veteran’s tuberculosis and his war service, such that the provisions of Instrument No 82 of 1997, Tuberculosis, are satisfied. The Tribunal accepts that the veteran, from 1944 until his death in 2001, suffered from war-caused tuberculosis.
42. The question then before the Tribunal is whether the veteran suffered from renal disease or failure as a result of his contracting and suffering tuberculosis during his service in World War II. The Tribunal has considered the medical evidence before it with respect to the question of renal disease or failure. The Tribunal is of the view that the evidence of Dr Healy, tested by way of oral evidence and cross-examination, is most persuasive and the Tribunal gives greater weight to her opinions than to those of Dr Aldons. The Tribunal is satisfied, on balance, that the veteran did not suffer from a renal condition as a result of suffering tuberculosis in the 1940s and therefore the hypothesis connecting the veteran’s death from IHD with renal failure is not tenable and there is no causal connection between his death and his tuberculosis because of renal failure.
43. This finding still leaves the possibility of a causal link between death and obesity and, in considering this possibility, the issue is whether the veteran was obese and, if so, whether it can be said that his obesity was connected to the treatment he received for tuberculosis.
44. The Tribunal accepts the applicant’s submission (and the findings of the VRB) that the clinical onset of the veteran’s IHD was in 1983.
45. The first question is whether the veteran was obese for a period of at least two years within the fifteen years immediately before the clinical onset of ischaemic heart disease, that is, within the period 1968 to 1983.
46. For the veteran to be obese he must have increased his body weight by way of fat accumulation to obtain a body mass index of 30 or greater. In the veteran’s case he was 1.75 meters tall and at this height his weight would need to be 92 kilograms (203 lbs) for him to be classified as obese.
47. Clearly, on the evidence of the applicant, the veteran’s weight was approximately 224 lbs shortly after his discharge and compares with a weight on enlistment of 150 lbs and on discharge 140 lbs. The Tribunal notes that the veteran’s weight was some 20 lbs less than his enlistment weight in 1943, it would appear because of his tuberculosis, and that with treatment for tuberculosis during the last period of his service it would appear that his weight increased because of a fattening diet he was required to eat. The Tribunal also notes that the veteran’s medical records provide medical opinions that the veteran was “obese” in 1974 and 1978 and “slightly obese” in 1983.
48. On all of the material before it the Tribunal is satisfied, on balance, that the veteran was obese during the relevant period.
49. The question then is whether the veteran’s obesity was causally related to his service during World War II. The evidence before the Tribunal about the veteran’s dietary intake is confined to the evidence given by the applicant. It was the applicant’s evidence that when she first met the veteran in 1943 he was trim, fit and energetic and that following the diagnosis of his tuberculosis in 1944 he was placed on a diet of milk, beer and fattening foods, a diet which he maintained after discharge and which resulted in his weight increasing to 16 stone. It was also the applicant’s evidence that the veteran continued with a fattening diet even after his tuberculosis was no longer diagnosable because of his anxiety that the disease might return and associated with this anxiety, the veteran increased his consumption of beer such that it was excessive and he was often drunk.
50. The Tribunal is mindful that the question of obesity was not addressed by the VRB in its consideration of this matter and that, apart from the applicant’s evidence, there is no further evidence about the veteran’s dietary intake.
51. After consideration of all of the material before it and the submissions of both parties, the Tribunal, on balance, is satisfied that the veteran’s war-caused tuberculosis resulted in his being exposed to an environment which not only required him to increase his caloric intake but also resulted in this intake being excessive for his energy needs and not compensated for by his physical activity.
52. In being so satisfied, the Tribunal has accepted the applicant’s evidence about the veteran’s dietary intake post the diagnosis of tuberculosis, the veteran’s very significant weight increase shortly after discharge and the type of work and activities of the veteran during the relevant period. The Tribunal is satisfied that the veteran’s service contributed in a material way to the development of his obesity.
53. The Tribunal is satisfied that the veteran’s obesity arose out of or was attributable to his eligible service and that, therefore, pursuant to factor 5(c) of Instrument No 54 of 2003, the veteran’s ischaemic heart disease was causally related to his eligible service.
54. The Tribunal is therefore satisfied that the veteran’s death was war-caused.
55. The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Rupert Cameron was war-caused with effect from 3 January 2001 and that the applicant Jeanne Cameron is entitled to a war widow’s pension with effect from 3 January 2001.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 30 March 2004 (at Warwick)
Date of Decision 4 June 2004
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Madden & Co
For the Respondent Mr B Williams, Departmental Advocate
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