Chesher and Repatriation Commission

[2011] AATA 284

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2474

VETERANS’ APPEALS DIVISION		)
Re		Jacqueline Chesher

Applicant

And  Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton and Dr M E C Thorpe

Date2 May 2011

PlaceSydney

Decision The decision under review is affirmed.

........................[sgd]......................

Senior Member A K Britton

CATCHWORDS

VETERANS’ ENTITLEMENTS –widow’s pension – medical cause(s) of death - dementia – vascular dementia – veteran did not have vascular dementia – form of veteran’s dementia unknown - no applicable Statement of Principles – no reasonable hypothesis connecting war service with death – decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) – ss 5AB(2), 6A, 7, 8(1), 13, 120, 120(4), 120A, 120A(1), (3)-(4), 120(6), 196B(2)

CASE LAW

Collins v Repatriation Commission (2009) 177 FCR 280; [2009] FCAFC 90

Repatriation Commission v Law (1980) 147 CLR 635; [1981] HCA 57

Hill v Repatriation Commission (2009) 177 FCR 434; [2009] FCAFC 91

Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47

OTHER INSTRUMENTS

Statement of Principles, Instrument no. 21 of 2006

REASONS FOR DECISION

Senior Member A K Britton
Member Dr M E C Thorpe

1.      Mrs Jacqueline Chesher is the widow of veteran Mr Keith Chesher who died in 2008 at the age of 81.  Mrs Chesher’s claim for a widow's pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) was refused by the Repatriation Commission and on review, by the Veterans' Review Board. Mrs Chesher now seeks review of that decision.

2.      Mrs Chesher contends that the “kind of death” suffered by her husband was death from “vascular dementia” or in the alternative “dementia” and that each condition was “war-caused”.  The Repatriation Commission agrees that a cause of Mr Chesher’s death was “dementia” but contends that the cause of the dementia was unknown.

3.      In this review we must determine the medical cause or causes of Mr Chesher’s death and whether any or all, were “war-caused”.

Statutory Framework

4.      Section 13 of the Act provides that where the death of a veteran was “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran. 

5.      The circumstances in which a veteran’s death is to be taken as having been “war-caused” are specified in s 8(1) of the Act, and include where “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”: s 8(1)(b).

6.      Because Mr Chesher served in the Royal Australian Air Force from 14 April 1944 to 4 April 1946 and served overseas, the whole of his service constitutes both “operational service” and “eligible war service” as defined by ss 6A and 7 of the Act.

Meaning of Terms “death” and “kind of death”

7.      The meaning of the word “death” and the phrase “kind of death” in the context of the Act has recently been considered by the Full Court of the Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280. The following principles can be taken from that judgment:

·The word “death”, as used in ss 8 and 13, is a reference to the condition that causes the death — that is, the medical cause or causes of death: 288-289.

·There may be more than one medical cause of death: 289. See also Repatriation Commission v Law (1980) 147 CLR 635.

·The Act does not draw a legal distinction between the ultimate or primary and secondary medical causes of death of a veteran: 297, 299.

·Any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is not a death (that is a medical cause of death) or a kind of death under the Act: 296.

What was the cause of death?

8.      The first issue to be determined is the medical cause or causes, of Mr Chesher’s death. That question is to be determined to our reasonable satisfaction (on the balance of probabilities), in accordance with s 120(4) of the Act.

9.      There was no dispute that the immediate cause of Mr Chesher’s death was aspiration pneumonia as a result of dementia.  However the cause and form of the dementia are disputed.  It was argued for Mrs Chesher that, consistent with the opinion of consultant physician, Associate Professor Richard Haber, her husband suffered from dementia, specifically Binswanger’s disease, a form of vascular dementia.  While the Commission agreed that dementia was a cause of death it rejected the proposition that it was vascular in origin, citing in support the opinion of consultant neurologist, Professor James Lance. 

10.     It is a matter of common knowledge that dementia is a disease that can take a number of forms.  DSM-IV, for example, lists 12 forms of dementia. An issue raised in this matter is — where there is more than one form of a recognised disease — whether it is necessary to consider the form of the disease that was the cause of death.

11.     In Hill v Repatriation Commission (2009) 177 FCR 434, the Full Court found at 446 that in deciding that the cause of death was “heart failure” and “renal failure”, the tribunal had erred by focusing on the cause of death in a general way and not on the medical cause or causes of the death. After considering the terms of s 5AB(2) of the Act, which informs when a Statement of Principles under s 196B(2) should be made, the Full Court said at 447:

[Section s 5AB(2) of the Act], in particular subs (a)(ii), recognises that a medical condition is one which is to be identified at a proper level of specificity. It anticipates that a "medical condition" is to be capable of diagnosis and management. For example, to say that an injury or disease is an arm injury or an arm disease is not to describe a medical condition; nor would it be correct to say that, if death resulted from an arm injury or an arm disease, that would describe the medical condition which resulted in death.

The definition of "disease" also does not contemplate that a morbid condition should be capable of description only in a general way. It too requires the identification of the particular medical condition, based upon medical diagnosis. Otherwise, the injury required by ss 9 and 120 and 120A would not be capable of being rationally applied to determine if the disease is war-caused.

12.     The disease/condition dichotomy does not apply in this matter. Plainly dementia is a disease not a “condition” such as heart failure.  Nonetheless in our view where there is a conflict in the evidence about the form of the disease claimed to have been a cause of death, consistent with the approach taken in Hill, it is necessary to determine the form of the disease that was the cause of death, and if possible and relevant, those forms of the disease not a cause of death.

Was vascular dementia a cause of death?

13.     Associate Professor Haber, as noted, believes that Binswanger’s disease, a form of vascular dementia was a cause of Mr Chesher’s death; Professor Lance disagrees.  To understand the basis for their differing opinions, it is necessary to examine their evidence in some detail.

14.     Associate Professor Haber was of the opinion that Mr Chesher suffered from small vessel disease, a form of cerebrovascular disease. In support he pointed to the following extracts from reports of CT scans of Mr Chesher’s brain taken in 2007: 

Low density changes are seen within the right internal capsule which most likely relates to chronic small vessel ischemia (Report of CT scan, 16 May 2007)

Bilateral periventricular white matter hypodensity suggesting chronic ischaemic changes due to small vessel disease. (Report of CT scan, 3 August 2007)

15.     According to Associate Professor Haber these reports revealed small vessel involvement in the white matter which he asserted was a “very well known cause of dementia … Binswanger’s disease… a form of vascular dementia…”.  While he was of the opinion that there was no evidence to suggest that Mr Chesher might have suffered a cerebrovascular accident — a stroke or transient ischaemic attack, a haemorrhage or clot, causing damage to a part of the brain — he believed that there was clear evidence of cerebral ischaemia which he explained meant:

[I]nadequate blood supply to the brain or part thereof, …[it] does not necessarily mean that there is damage to any part of the brain;  it simply implies that the piping is narrowed, the tubes going to the brain carrying blood are narrowed and may or may not cause problems.

16.     Professor Lance agreed that the 2007 CT reports revealed evidence of abnormality in the white matter consistent with progressive small vessel cerebrovascular disease.  However, he differed with Associate Professor Haber about the significance of those white matter changes. He believed that changes of the type seen on imaging were commonly seen in people of the “older age group”. In his opinion changes in white matter alone could not result in dementia because white matter does not effect the cerebral cortex — which he described as “the basis of all cognitive function” — unless by “some catastrophe” the entire white matter had been wiped out.

17.     In Professor Lance’s opinion, had the rapid decline in Mr Chesher’s cognitive ability (which is not disputed) been caused by cerebrovascular disease, there would be evidence on imaging studies of structural change to the brain in the form of either small lacunas or larger areas being infarcts causing stroke.  He thought the mild ischaemic changes revealed on imaging could not have been responsible for Mr Chesher’s rapid decline. 

18.     Professor Lance thought that the reported changes evident on CT were capable of affecting cognitive function but conceded that absent a biopsy it was not possible to say what these small changes represented.  In his opinion, cognitive function is usually affected by some clear-cut destructive lesion caused by an obstruction or damage to a vessel and in the absence of that evidence “it’s very hard to say that it’s related at all to dementia”.

19.     Professor Lance believes that Mr Chesher’s dementia could have been caused by any number of factors — Parkinson’s disease, Alzheimer’s disease, the tumour in the right temporal lobe that had been treated by radiotherapy, the radiotherapy itself, or, a combination of factors.  The one cause he was prepared to rule out was cerebrovascular disease.  In his opinion, the form and cause of the dementia could only be reliably established through an autopsy.  He used the term “dementia of unknown cause” to describe Mr Chesher’s condition.

20.     Professor Lance has provided a cogent and plausible explanation as to why Mr Chesher’s dementia could not have been caused by white matter changes alone.  Those changes are the only objective evidence to support Associate Professor Haber’s diagnosis of vascular dementia. Consistent with Professor Lance’s opinion, we think it more likely than not that Mr Chesher did not suffer from vascular dementia.

21.     From what is before us we are unable to determine the form of dementia that was a cause of Mr Chesher’s death.  However we are satisfied that he did not suffer from vascular dementia.

Standard of proof where death claimed to be “war-caused”

22.     In determining whether Mr Chesher’s death was “war-caused”, we must apply the standard of proof set out in s 120 and, if applicable, s 120A.  Section 120 relevantly provides: 

(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.

...

(3) In applying subsection (1) or (2) 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 ...

This subsection is affected by section 120A.

23.     Section 120A is headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles”.  Sections 120A(3) and 120A(4) provide:

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or 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

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(4)  Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

…

(c)  the kind of death met by the person;

as the case may be.

is there an applicable Statement of Principles?

24.     Whether the cause of Mr Chesher’s death is to be determined with reference to s 120A turns on whether the Repatriation Medical Authority has determined a Statement of Principles in respect of “dementia” or declared that it does not propose to create one.

25.     The Commission has determined a Statement of Principles, in relation to vascular dementia — Instrument no. 21 of 2006. Given our finding that Mr Chesher did not suffer from vascular dementia that SoP does not apply. 

26.     The parties advise that the Repatriation Medical Authority has not determined a Statement of Principles in respect of “dementia” or declared that it does not propose to create one. 

27.     Accordingly there is no applicable Statement of Principles.

Was the death war-caused?

28.     Given that there is no applicable Statement of Principles, consistent with the approach taken in Bushell v Repatriation Commission (1992) 175 CLR 408, the following questions must be determined:

·First, does the material before us point to a hypothesis connecting Mr Chesher’s death with the circumstances of the particular service rendered by him?

·Second, if yes, is the hypothesis reasonable? 

·Third, can we be satisfied beyond reasonable doubt that Mr Chesher’s death was not war-caused? 

Does the material point to a hypothesis connecting Mr Chesher’s death with service?

29.     The hypothesis advanced on behalf of Mrs Chesher was that her husband’s vascular dementia was caused, or materially contributed to, by small vessel disease; that disease was caused, or materially contributed to, by her husband’s smoking history, which in turn, was “related to” his operational service. 

30.     It is argued for Mrs Chesher that that hypothesis is not incompatible with a finding that Mr Chesher did not suffer from vascular dementia but consistent with the opinion of Professor Lance suffered from “dementia of unknown cause”.  We cannot accept that submission.  Having found that vascular dementia was not a cause of Mr Chesher’s death, it is not open to us rely on a hypothesis which assumes the contrary. 

31.     There is no other hypothesis before us connecting Mr Chesher’s death with service. It follows that we could not be satisfied that Mr Chesher’s death was “war-caused” and accordingly the decision under review must be affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe

Signed:         .................................[sgd]....................................
  Associate to Senior Member Britton

Date of Hearing  3 March 2011     
Date of Decision  2 May 2011
Counsel for the Applicant         Mr M Vincent     
Solicitor for the Applicant          Mr A Kemp, Kemp & Co. Laywers
Solicitor for the Respondent     Ms J Warmoll