Chalmers and Repatriation Commission
[2001] AATA 948
•16 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 948
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/393
VETERANS' AFFAIRS DIVISION )
Re DULCIE GLADYS CHALMERS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date16 November 2001
PlaceBrisbane
Decision The Tribunal decides that the decision under review is affirmed.
(Sgd) K L Beddoe
Senior Member
Decision No: 948/2001
CATCHWORDS
VETERANS' AFFFAIRS - war widow's pension – veteran's death from ischaemic heart disease -– persistent obesity – hypertension - whether a reasonable hypothesis arose connecting the veteran's service with his cause of death
Veterans' Entitlements Act 1986 s 8,s13, s120
Statement of Principles, Instrument No77 of 1996
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Wayne Walter Rowe and Repatriation Commission [2000] AATA 47
Re Witten and Repatriation Commission (1998) 54 ALD 605
REASONS FOR DECISION
16 November 2001 Mr K L Beddoe (Senior Member)
The applicant lodged a claim on 4 July 1996 for a war widows' pension on the basis that the death of her husband, a veteran, from ischaemic heart disease was war caused. The respondent refused the claim on 21 August 1996, on the basis that the death of the veteran was not war caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). The Veteran's Review Board affirmed the decision of the Repatriation Commission on 10 February 1999 and advised the applicant under cover of a letter dated 10 March 1999.
The applicant now seeks review of that decision.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and a number of exhibits tendered by the applicant and the respondent. Mr Harding of Counsel, instructed by Gilshenan and Luton, appeared for the applicant. Mr Kelly represented the respondent. Mr Harding called the applicant as a witness.
The veteran's cancer of the prostate was an accepted disability for the purposes of the Act.
There was no dispute that the veteran had rendered operational service having served from 8 April 1942 to 11 January 1946.
The applicant's husband passed away on 14 February 1996. The causes of death were recorded as (1) cardiac asystole, cardiac arrhythmia, ischaemic heart disease, and (2) Parkinson's disease, urinary tract infection and gout (T4, page 12).
Section 8(1)(d) of the Act states that:
the death of a veteran shall be taken to have been war-caused if:
in the opinion of the Commission, the death of the veteran was due to …a disease that would not have been contracted, but for his or her having rendered eligible war service…
The Applicant's Arguments
It was argued for the applicant that the veteran suffered from hypertension which was war caused, the result of an increase in consumption of fat and calories during service which continued post-service resulting in obesity.
It was argued in the alternative that the veteran's "persistent obesity" caused hypertension which then lead to the veteran suffering ischaemic heart disease.
The applicant relied on SoP No 77 of 1996 (Ischaemic Heart Disease) in particular paragraph 5(a) – "the presence of hypertension before the clinical onset of ischaemic heart disease" to support the contention that the veteran's ischaemic heart disease was war caused. It was also submitted that as obesity can cause hypertension, paragraph 5(c) of the SoP would apply in addition to, or in the alternative to this hypothesis.
The Tribunal was directed to the fact that the date of onset of the veteran's condition of hypertension was noted as 1986 (T4, page 21). The period of suffering from ischaemic heart disease was noted on the death certificate as "years" (T4, page 12) and it was contended that from this it could be inferred that the date of onset of this latter condition was also 1986.
The applicant provided a written statement (Exhibit A) and spoke to that in her oral evidence given by telephone. The applicant stated that she had known the veteran since he was 16 years old. She stated that the veteran was not a smoker and did not drink heavily.
The applicant did not consider the veteran to be overweight, rather she thought him to be " a stocky man with heavy bones". She stated that the veteran was a slim man before he went overseas and had lost weight from the time he left for service in New Guinea and his return. They were married during the veteran's three weeks leave prior to his leaving for Borneo. She stated that he had also lost weight whilst serving in this latter area.
The applicant stated that although the veteran took up employment as a cream carrier for a dairy, he did not like dairy products. They were conscious of the need for cholesterol free cooking, particularly after the veteran had a gall bladder operation. As a couple they were great vegetable eaters. The applicant stated that the veteran ate anything and everything she put in front of him. She did not think that the veteran gained weight. His clothes always fitted him, although he lost weight with the prostrate cancer.
The veteran worked as a railway guard on his discharge from the service and retired from that employment at the age of 65 years. His meals were only what he could take with him, that is sandwiches and something to heat up, as far as she was aware. He did not have access to cafeteria facilities.
A report on "Animal Fat Consumption" by Dr Ruth English, Dietician, was tendered for the applicant (Exhibit B).
Also, it was submitted that the veteran's Body Mass Index's ("BMI's"), the measure of overweight and obesity, increased from 27.42 on enlistment (1942) to 28.9 on discharge from the services (1946) and later to 31.79 in July 1982, peaking at 32.183 in April 1986.
From this evidence, it was argued that the veteran's weight increased from the time he entered the service until he was obese, thus satisfying paragraph 5(c) of the SoP which requires:
"The presence of persistent obesity before the clinical onset of ischaemic heart disease;…"
It was argued for the applicant that the RMA statement regarding obesity was not relevant as the Act, at section 196B(14), only required that for a factor causing death to be related to service rendered by a person, it occur whilst the person was on service.
The Respondent's ArgumentsIn her evidence, Dr English spoke to her report dated 27 September 2000 (Exhibit 1). She advised that the National Health and Medical Research Council considered the causes of obesity in the community were related to affluence and were multifactorial – the ready availability of food and a decrease in the level of physical activity being general factors. Further, inherited characteristics, diet, life style were also relevant to overweight and obesity in individuals.
The witness advised that the prevalence of overweight in males is 45% with a general trend in overweight and obesity to the age of 54 years followed by a decline in weight.
Dr English told the Tribunal that the veteran was overweight on enlistment and gained four kilograms during his service. He was thus also overweight on discharge. This weight gain could have been accounted for by an increased intake of food, but more information regarding the veteran's history needed to be considered.
The witness referred to her report at Exhibit B, in particular Table 1 - "Daily animal fat content of Australian diets/rations in WW2 era:" Of relevance is the reference in paragraph 5 to the consumption of fat during the period April 1943 to January 1944 when the veteran was posted to New Guinea and February 1944 to October 1945 when he was posted to Borneo (T4, pages 1 and 2). These amounts are shown to be 113.2 grams and 131.8 grams of animal fat respectively.
It was submitted that the applicant did not know what the veteran ate before she married him and no evidence regarding increased eating habits on the part of the veteran after discharge were provided. In addition, it was submitted that, with regard to the RMA "Statement about the causes of "being obese"" issued on 16 August 1996, the veteran' s weight gain did not match the requirement of "at least 20% of the baseline weight" in paragraph (a). The veteran's gain was 17% over his entry weight into the services.
ConsiderationsI accept that the appropriate SoP in this matter is Instrument No.77 of 1996. I have been invited by the applicant's representative to consider paragraphs 5(a) (hypertension) and/or 5(c) (persistent obesity) as being the factors which apply in this matter.
There is no evidence before me regarding the time of onset of the veteran's ischaemic heart disease. I have noted that in document T4 (page 20) the respondent notes that no reference to ischaemic heart disease ("IHD") could be located in the veteran's records. The date of onset cannot be established with any certainty despite the applicant's contention that it was about 1986.
The term "clinical onset" has been considered in previous Tribunal decisions. In Re Witten and Repatriation Commission (1998) 54 ALD 605 the Tribunal referred to Re Robertson and Repatriation Commission (1998) 50 ALD 668 where the Tribunal, at 10-11, explained the term to refer to:
"either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at the time".
Further, at 62, the Tribunal remarked:
"The tribunal finds that there can be "clinical onset"' of a disease before the condition satisfies the definition of the disease in the SoP".
I therefore find that 14 February 1996, the date of death and first clinical mention of that disease, is a date proximate to the clinical onset of the veteran's ischaemic heart disease, having no other evidence before me.
"Hypertension" is defined in paragraph 7 of SoP No. 77 of 1996 as;
(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)(b) where treatment for hypertension is being administered,
attracting an ICD code on the range 401 to 405;"
Exhibit 2, dated 14 April 1986, notes that the veteran had been on anti-hypertensives for six months. Although no evidence was provided of how the diagnosis of hypertension was reached, I am satisfied that the veteran suffered "hypertension" within the terms of the SoP, the clinical onset of this disease being November 1985. In addition, I am satisfied that the veteran suffered hypertension before the onset of ischaemic heart disease thus satisfying paragraph 5(a) of SoP No. 77 of 1996.
I am also satisfied that, although the veteran's weight and therefore BMI do not indicate that he was obese during his service, he was obviously "hovering around a BMI of 30" during this period (Re Wayne Walter Rowe and Repatriation Commission [2000] AATA 47 AAT). As stated in that matter, the legislation is beneficial legislation and SoPs should not be read too strictly. The veteran was close to obesity on entry and left the service having gained four kilogram in four years, although whether this was a rapid increase or gradual increase in weight has not been provided. I am therefore satisfied that the veteran was obese before the clinical onset of ischaemic heart disease thus satisfying paragraph 5(c) of the SoP.
However, clause 4 of that SoP states:
Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any service rendered by the person
For the applicant to succeed on her first hypothesis, I must be satisfied that the veteran's hypertension was related to his operational service. Clearly, this condition did not manifest itself during the veteran's relevant service. However, on the applicant's contentions, I have been invited to consider that the veteran's hypertension was causally related to his obesity which was the result of his operational service.
The question for this Tribunal is therefore whether the veteran's obesity was caused by his war service.
The applicant has undoubtedly given an account as accurately as she remembers of her husband's physical condition and eating habits after his operational service. However, where this conflicts with the medical records of the veteran's weight, I must accept the medical facts.
The Repatriation Medical Authority issued a "Statement about the causes of "being obese"" ("the Obesity Statement") on 16 August 1996 and noted that "obesity' is neither an injury nor a disease within the definitions of section 5D(1) of the Act. No SoP has been issued to date with regard to "obesity". It is the Obesity Statement which is referred to by the Respondent with reference to a weight gain of at least 20% over the base line.
I do not find it necessary to consider in detail the Obesity Statement as the SoP deals with the definition of "obesity" and is sufficient for the purposes of my decision. However, I make the observation that although the veteran's service did not result in a weight gain of at least 20% of his baseline weight, again I do not see that a strict reading should be applied to this requirement as a 17% gain is again hovering on the margin. Nevertheless, no evidence was presented to satisfy me that the veteran's gain of four kilograms during his service was caused other than by an increase in food intake which continued after service. In addition, no evidence has been provided to connect the veteran's obesity to any of the factors in the Obesity Statement.
No evidence was presented of the veteran's eating habits in the years prior to his enlistment or of any indication that his weight gain was a continuation of a trend started before enlistment. I therefore draw no conclusions from this.
Clause 7 of SoP No.77 of 1996 states that:
"obesity" means having a Body Mass Index (BMI) greater than 30, where:
BMI = W/H
And where:
W is the person's weight in kilograms; and
H is the person's height in metres."On this definition and the applicant's own evidence, the veteran was "obese" in 1982. He was therefore obese before the clinical onset of his hypertension.
From Dr English's report, I understand that the normal consumption of animal fats in the civilian diet of a man in the 1940's was similar to that which the veteran consumed in his time in operational service. I find that that report was prepared to assist decision makers "in applying the animal fat consumption factors in the Statements of Principles for malignant neoplasm of the prostate". However, the report contains information with regard to animal fat consumption with reference to WW2 veterans in particular.
The Tribunal has noted the report and also notes that Dr English is unable to state that the applicant's weight gain during service was the result of a mild increase in calorific intake or reduced activity and/or circumstantial variations occurring during the weighing process such as time of day and clothing worn.
"Persistent obesity" is not defined is not defined within the SoP nor within the Obesity Statement. Neither is it defined within recent cases dealing with this condition. The Macquarie Dictionary (3rd ed 1998) defines "persist" as:
"1. to continue steadily or firmly in some state, purpose, course of action, or the like, especially in spite of opposition, remonstrance, etc 2. to last or endure 3. to be insistent in a statement or question."
The same dictionary defines "persistent" as:
"1. persisting, especially in spite of opposition, etc; persevering 2. lasting or enduring 3. continued; constantly repeated 4. Biology continuing or permanent"
The Australian Concise Oxford Dictionary (3rd ed 1997) defines "persist" as"
"1. continue firmly or obstinately (in an opinion or a course of action) especially despite obstacles, etc 2. (of an institution, custom, phenomenon etc) continue in existence; survive."
"Persistent" is defined in that dictionary as:
"1. continuing obstinately; persisting 2. enduring 3. constantly repeated."
I am therefore satisfied that for obesity to be "persistent", it would have to be shown that the subject's obesity was continuous, rather than episodic.
No evidence has been provided to indicate a "persistent obesity" to satisfy paragraph 5(c). There is no evidence of the veteran's weight from 1946 to 1982, although I note that from 1982 to 1986 the veteran's BMI's were such that he would have been classified as "obese" at the relevant times of measurement (1982, 1986 and 1987). Again, I note that no evidence of "persistent obesity" had been provided for the period from 1982 until 1986. From 1982 to 1986, the veteran was living and eating in a domestic situation. I find it difficult therefore to connect any weight gain in the post-separation period as attributable to service. In my view the proposed hypothesis is outside the terms of the Statement of Principles.
For these reasons, I am also satisfied beyond reasonable doubt that the veteran's hypertension was not war caused. In addition, although his hypertension may have been caused by his obesity, the obesity was not related to service.
The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 6 December 2000
Date of Decision 16 November 2001
Counsel for the Applicant Mr Harding
Solicitor for the Respondent Mr Kelly
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