Chamberlain and Repatriation Commission - [2000] AATA 862

DECISION AND REASONS FOR DECISION [2000] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1001

VETERANS'   APPEALS   DIVISION )
           Re      Neida Pauline Chamberlain
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest Assoc. Prof. J.H. Maynard, Member

Date27 September 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  .........(Sgd. B.M. Forrest)..............
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – Widow's claim that death of the veteran was war-caused – veteran died of acute myocardial infarction – operational service – whether reasonable hypothesis linking hypertension, depressive disorder and ischaemic heart disease – whether raised hypotheses consistent with relevant Statements of Principles – decision affirmed
Veterans' Entitlements Act 1986 ss. 8, 120(1), 120(3), 120A and 196B
Byrnes v Repatriation Commission (1992-93) 177 CLR 564; (1993) 116 ALR 210
Bushell and Repatriation Commission (1992) 175 CLR 408
Keeley v Repatriation Commission (1998-99) 56 ALD 455, (1999) 30 AAR 48
Repatriation Commission v Keeley (2000) 31 AAR 150
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82, (1997-98) 49 ALD 193
McKenna v Repatriation Commission (1998-99) 86 FCR 144

REASONS FOR DECISION

27 September 2000 Deputy President B.M. Forrest Assoc. Prof. J.H. Maynard, Member

This is an application by Mrs Neida Chamberlain for review of a decision of a delegate of the Repatriation Commission ("the Commission") on 9 April 1998, and affirmed by the Veterans' Review Board ("the VRB") on 15 July 1998, that the death of her husband, Alan William Chamberlain ("the veteran"), was not war-caused.
Section 8 of the Veterans' Entitlements Act 1986 ("the Act") relevantly reads:
"8. (1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
...
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;..."
The veteran died on 6 December 1997 aged 80 years. The Death Certificate recorded the cause of death:
Acute Myocardial Infarction – 1 hour.
Coronary Artery Disease – 4-5 years.
Hypertension – 10 years.
Cerebrovascular Disease – 2 years.
The veteran had been in receipt of disability pension at seventy per cent of the general rate from 29 October 1996 for the accepted war-caused disabilities of gun shot wound left forearm, osteoarthritis left shoulder and bilateral sensori-neural hearing loss. The veteran also suffered from osteoarthritis of the thoracic spine but this disability had been rejected as war-caused.
The veteran served in the Australian Army from 1 July 1940 to 18 December 1945. He was a member of the Second Eighth Australian Infantry Battalion. As the veteran served in the Middle East during World War II his service constitutes operational service as defined in the Act. Consequently, the standard of proof in determining this matter is governed by ss. 120(1) and 120(3) of the Act.
"120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(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:
…
(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."
In Byrnes v Repatriation Commission (1992-93) 177 CLR 564; (1993) 116 ALR 210 the High Court (Mason CJ., Gaudron and McHugh JJ.) explained (at CLR 571; at ALR 215) the steps to be taken in applying s. 120 of the Act:
"The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In the earlier case of Bushell and Repatriation Commission (1992) 175 CLR 408, Mason CJ., Deane and McHugh JJ. explained the concept of "reasonable hypothesis" and the way in which questions of expert medical opinion are to be considered in determining whether an hypothesis is reasonable.
Because the applicant's claim for pension was made after 1 June 1994, s. 120A of the Act applies. Sub-section 120A(3) relevantly provides:
"(3) For the purposes of subsection 120(3), a hypothesis connecting...the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
....
that upholds the hypothesis."
The Repatriation Medical Authority has pursuant to s. 196B(2) of the Act determined a Statement of Principles ("SoP") concerning ischaemic heart disease, Instrument No. 140 of 1996. This was amended by Instrument Nos. 77 of 1997 and 37 of 1998 and revoked by Instrument No. 80 of 1998 dated 1 December 1998, in turn revoked by Instrument No. 38 of 1999 dated 27 April 1999.
A factor common to SoP No. 140 of 1996 (which was not affected by the amending SoP's) and SoP's No. 80 of 1998 and No. 38 of 1998 is:
"5. (a)the presence of hypertension before the clinical onset of ischaemic heart disease."
These SoP's also provide (clause 4) that (subject to an exception not relevant here) at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Further, they provide that ischaemic heart disease may be evidenced by myocardial infarction (old or new): clause 2(b)(i). In the present case the certified cause of death was acute myocardial infarction.
On the authority of Keeley v Repatriation Commission (1998-99) 56 ALD 455, (1999) 30 AAR 48; followed on appeal, Repatriation Commission v Keeley (2000) 31 AAR 150, a review by the Tribunal of a decision of the Commission as affirmed by the VRB is to be determined by the SoP in force when the primary decision was made and not by reference to the SoP in force when the Tribunal reviews the matter.
In this matter the SoP in force for ischaemic heart disease as at 9 April 1998, the date of the Commission decision, was Instrument No. 140 of 1996. For the purposes of the hypotheses raised on behalf of the applicant other relevant SoP's in force as at 9 April 1998 were:
Instrument No. 83 of 1995 for hypertension; and
Instrument No. 65 of 1996 for depressive disorder, as amended by Instrument No. 181 of 1996, which substituted an amended definition of "severe psychosocial stressor".
The method of application of the statutory criteria in ss. 120(1), 120(3) and 120A was considered by the Federal Court (Heerey J.) in Deledio v Repatriation Commission (1997) 47 ALD 261 and on appeal by a Full Federal Court (Beaumont, Hill and O'Connor JJ.) Repatriation Commission v Deledio (1998) 83 FCR 82, (1997-98) 49 ALD 193. The Full Court at FCR 95-96, at ALD 204-205 agreed with Heerey J's analysis:
"…it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can "uphold" the hypothesis…the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact."
The Full Court, at FCR 96, at ALD 205 further agreed with the observations of Heerey J. as to the relationship between ss. 120(1) and (3) and 196B(2):
"Therefore when s 196B(2) says a factor "must … exist" and "must be related to service", it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact."
Further at FCR 97, at ALD 206 the Full Court restated the course to be followed in a case such as the present, that is, one in which s. 120A of the Act applies:
"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 s 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."
From 1975 to 1989 the veteran was a patient of Dr John Scally, general medical practitioner. In a report dated 31 August 1998 (Ex. 2) Dr Scally wrote that at first consultation on 10 July 1975 he diagnosed the veteran as suffering from depression and hypertension. The depression was treated with anti-depressants and the hypertension with a combination of diuretics and betablockers throughout the 14 years Dr Scally treated the veteran. At times the veteran's blood pressure was significantly elevated. Dr Scally also recorded the veteran in March 1989 complaining of chest pain on 3 occasions which had the characteristics of angina.
Dr Scally concluded:
"…I mainly remember Mr Chamberlain as a gentle man who was deeply troubled by depression. He also had significant hypertension which required longterm treatment and may well have caused ventricular hypertrophy. Just prior to his move to Geelong he gave a history suggestive of ischaemic heart disease. It is reasonable to suggest that his long history of depression has substantially contributed to his hypertension, which in turn may have had a role in his ischaemic heart disease."
In a letter to the Commission dated 19 May 2000 (Ex. 2) Dr Scally wrote:
"At the time of Mr Chamberlain's first visit to my practice on the 10th July 1975 he was already diagnosed as being hypertensive and was on medication in the form of Aprinox 5mg daily. He had advised me that he had been diagnosed as having high blood pressure in 1972.
He also advised me that he had diagnosed as suffering from depression and he was taking Allegron at the time of his first visit. The depression had been diagnosed in 1972. I do not know when he first commenced taking Allegron."
Dr Edward O'Sullivan, physician, to whom the veteran was referred by Dr Scally in 1976, in a letter to Dr Scally dated 9 August 1976 (Ex. 2) recorded hypertension as having been first detected 10 years earlier. Dr O'Sullivan confirmed the diagnosis of hypertension which, at the time of consultation was well controlled by medication. He also considered the veteran had early hypertensive heart disease.
From August 1989 the veteran attended Dr Rod Taylor at the Grovedale Medical Centre. Dr Taylor recorded the veteran at first consultation as having evidence of ischaemic heart disease for which he was taking the medications Inderal and Adalat daily. In January 1990, the Inderal was increased because of raised blood pressure.
The Tribunal was informed that the applicant was unable to give evidence because of infirmity. Evidence was given by the veteran's daughter, Mrs Alison Benton, who recalled her father being a very reserved person not inclined to talk about his wartime experiences. She recalled her father taking daily medication from the late 1950's but was not aware of the nature of the medication.
Dr Bryon Collins, consultant forensic pathologist, was requested by the applicant's solicitors to give an opinion in this matter. In a report dated 13 July 1999 (Ex. A) he wrote:
"2    It is well documented in the medical records and the letters written by Dr. J. Scally (31/8/98) and Dr. R. Taylor (25/6/98) that the late Mr. Chamberlain suffered from long-standing hypertension of sufficient severity to require a variety of anti-hypertensive drugs for its adequate control, this condition being present prior to the diagnosis of coronary artery disease.
3.    In this particular case, there is a number of probable causes for the late veteran's raised blood pressure:
(i)     apparently severe emotional stress brought on by his experiences during the war, as stridently attested to in Dr. Scally's letter and which clinically manifested themselves as an overt and florid depressive illness which, it would seem, remained with him until relieved by death.
(ii)     recognised adverse side-effect of the drug Allegron used in the treatment of the deceased's depression.
4.    If it is accepted that the late Mr. Chamberlain's pathological condition of depression were as a consequence of the considerable emotional turmoil he experienced during war service and that systemic hypertension was a resultant complicating disease process then, in my opinion, the widow's claim should be upheld having regard to the Statement of Principles concerning Ischaemic Heart Disease 5(a)."
It was Dr Collins evidence that Allegron has a wide range of effects on the cardio-vascular system of which both hypotension and hypertension have been recorded amongst others such as myocardial infarction and arrhythmia.
Dr Collins said he consulted the 1997 MIMS manual of therapeutic medicine which stated under cardio-vascular adverse reactions in hypotension, hypertension, tachycardia which means rapid pulse – palpitation, myocardial infarction, arrhythmias and heart block. In a discussion he had with a person in the medical division of the drug company which prepares Allegron he was informed that hypertension was recorded as a low occurring side effect of Allegron in approximately one per cent of the reported cases. He also was of the opinion that Allegron may aggravate existing hypertension.
Dr Francis Morgan, a Doctor of Medicine and formerly Assistant Professor of Medicine in the Faculty of Medicine at Columbia University New York and a term as Director of Research at St Vincent's Hospital Melbourne is currently employed by the Department of Veterans' Affairs. In an internal Minute dated 31 August 1999 (Ex. 1) he wrote "To my knowledge a raised blood pressure is not a problem with tricyclic antidepressants, which are not an accepted cause of hypertension".
In oral evidence he said that he was unaware of any evidence that hypertension is a side effect of tricyclic anti-depressants one of which is Allegron. He consulted Goodman and Gillman, a primary text in pharmacology, and while the publication contains a very large coverage of tricyclic anti-depressants which he said were some of the earliest and common anti-depressant medications, there is no mention whatever of hypertension as a side effect. Dr Morgan added he was unaware of any mention in the medical literature of hypertension being a side effect of tricyclics. Asked about MIMS, Dr Morgan said it has no standing at all in terms of academic standing in setting out side effects of drugs, it is a quick reference for general practitioners to check for side effects but it would never be regarded as a standard manual in pharmacology.
The Tribunal accepts that the veteran had hypertension on discharge from service. No blood pressure readings were taken on enlistment. The blood pressure reading of 130/90 on discharge falls within the definition of hypertension in Instrument No. 83 of 1995 "…a diastolic reading...equal to 90 mmHg". Post discharge the earliest reference to hypertension appears to be in about 1966 (Ex. 2). Dr Scally who treated the veteran's hypertension from 1975 to 1989 had a history that it was first diagnosed in 1972.
One hypothesis advanced by Mr Hyde, Counsel for the applicant, is that the veteran's hypertension was a war-caused disease arising out of the stress of his service in turn leading to the ischaemic heart disease from which he died.

In determining whether hypertension is war-caused, the Tribunal follows the Deledio approach. The link between hypertension and ischaemic heart disease is not controversial; it is made in factor 5(a) of the relevant SoP, nor is the link between ischaemic heart disease and death on the evidence before the Tribunal. The Commission disputes the connection between hypertension and service. Assuming for the present that the material which reveals the presence of hypertension on discharge points to the hypothesis put forward connecting hypertension with the circumstances of service it must also be consistent with any applicable SoP before it can be said to be a reasonable hypothesis.
As previously mentioned there is in force a SoP concerning hypertension, Instrument No. 83 of 1995. The hypothesis will be reasonable if it is consistent with the "template" contained in the SoP. The factors (at least one) that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the veteran's operational service are set out in clause 5 of the SoP. There are no factors which relevantly connect hypertension per se with the stressful circumstances of service. The Tribunal readily accepts that the veteran's service in the Middle East in World War II, particularly in Crete, was stressful, but stress on service is not a factor set out in the SoP. The evidence of Dr Collins supports a hypothesis linking hypertension with "severe emotional stress". In so far as it does so, it seeks to raise a hypothesis by a factor not identified in the SoP and the operation of the SoP cannot be altered in this way.
Consequently, as the hypothesis is not consistent with the SoP, the material does not raise a reasonable hypothesis within the meaning of s. 120(3) and the claim based on this hypothesis must fail.
An alternative hypothesis advanced by Mr Hyde is that the veteran's service led to depression, and to hypertension secondary to the medication (Allegron) used for the treatment of depression, and in turn the ischaemic heart disease. As mentioned earlier the Tribunal accepts that the veteran's service was stressful, that the veteran suffered a "severe psychosocial stressor" as defined in the amended definition of that phrase appearing in Instrument No. 181 of 1996 when he was shot during service. Interestingly the book "The Second Eighth" a history of the Second Eighth Australian Infantry Battalion has a photo of the veteran's steel helmet showing bullet holes made by German sniper fire. Mrs Benton has her father's helmet. Again assuming for the present that there is some material pointing to the hypothesis put forward, and it is not obviously fanciful or too tenuous, it must also be upheld by any applicable SoP before the hypothesis can be said to be reasonable.
As mentioned earlier the relevant SoP concerning depressive disorder is Instrument No. 65 of 1996. Factor 5(b) reads:
"experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;"
The relevant SoP for hypertension is Instrument No. 83 of 1995. Factor 1(u) reads:
"suffering from hypertension secondary to medication used in the clinical management for another condition;"
For the hypothesis to be reasonable, each disease, that is, the link between depression, hypertension and ischaemic heart disease has to be upheld by a SoP: McKenna v Repatriation Commission (1998-99) 86 FCR 144 (Branson, Sundberg and Kenny JJ). To determine whether the hypothesis is reasonable, it is necessary to consider whether it is consistent with the "template" of the SoP. It is here where the applicant faces real difficulty because the hypothesis is not consistent with any factor of the SoP for depressive disorder. Factor 5(b), the only factor relied upon, none of the other alternatives within clause 5 being applicable, imposes a time limit of two years from the "severe psychosocial stressor" and the clinical onset of depressive disorder. There is no material before the Tribunal pointing towards a depressive disorder within that time frame.
The evidence revealed depression as being first diagnosed in 1972. Commission clinical records contain a note of a consultation dated 27 September 1965 in which the veteran was recorded as having problems in the region of the left forearm and elbow where he had been shot during service. The note includes the statement "good sleep - no symptoms suggesting a nervous condition". In short, there is no material suggestive of a diagnosis of a depressive disorder prior to 1972. Thus the hypothesis does not satisfy any of the factors which must exist for depressive disorder to be related to the veteran's operational service. It follows that the hypothesis is not a reasonable one.
That finding is sufficient to determine the question of whether the hypothesis is a reasonable one. However, in deference to the submissions and the way the matter was argued, we also consider the question of hypertension secondary to medication (Allegron) in the clinical management of depression: see clause 1(u) of Instrument No. 83 of 1995.
Dr Collins and Dr Morgan expressed opposing views in relation to the side effects of Allegron. Dr Collins being of the view that hypertension is a recognised adverse side effect of Allegron and referring to the MIMS manual as providing some support for his view whereas Dr Morgan, relying on the Goodman and Gillman text said there is no medical evidence to support Dr Collins' view. In considering questions of expert medical opinion, it is not a question of preferring one expert to another: Bushell. In the present matter the expert medical evidence does not determine the question.
It is clear that the veteran's depression was treated with Allegron; that link in the hypothesis is not in issue. However, to fit within the "template" of the SoP there is a requirement that the hypertension is secondary to the use of medication (Allegron) in treating another condition (depression).
The material before the Tribunal reveals hypertension (as defined in SoP No. 83 of 1995) was recorded on discharge from service. Post service hypertension was detected in about 1966, as appears from Dr O'Sullivan's records and on Dr Scally's records the veteran was treated with medication for hypertension since 1972. As there is no material to suggest that depression was diagnosed prior to 1972, and there is material that hypertension was diagnosed before then, the requirement that the veteran was suffering from hypertension secondary to medication (Allegron) in the clinical management of another condition (depression) does not appear to be satisfied. The hypothesis will be reasonable if it is consistent with the "template" found in the SoP and on the material which raises the hypothesis, the relevant factor in clause 1(u) is not contained in the raised hypothesis connecting the veteran's death with the circumstances of his service and therefore the hypothesis is not a reasonable one.
As a consequence of our finding in relation to each of the raised hypotheses that the material does not raise a reasonable hypothesis connecting the veteran's death with the circumstances of his service it follows, by virtue of applying s. 120(3) of the Act that we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's death was war-caused.
The Tribunal finds, therefore that the veteran's death was not war-caused within the meaning of s. 8 of the Act.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Assoc. Prof. J.H. Maynard, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 May 2000
Date of Decision  27 September 2000
Counsel for the Applicant        Mr D. Hyde
Solicitor for Applicant               De Marchi & Associates
For the Respondent                 Mr R. Douglass, departmental advocate