Chugg and Repatriation Commission (Veterans' entitlements)

[2022] AATA 3381

Chugg and Repatriation Commission (Veterans' entitlements) [2022] AATA 3381 (17 October 2022)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/2850

Re:Aileen Chugg

APPLICANT

AndRepatriation Commission

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date:17 October 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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

Mr A. Maryniak KC, Member

Catchwords

VETERANS' AFFAIRS - War widow's pension - Whether veteran's death was "war-caused" - Applicant accepts application cannot succeed unless ischemic heart disease made a relevant contribution to the veteran's death or kind of death - cause of death held to be cerebral ischaemia, dementia, aspiration and pneumonia - kind of death held to be aspiration and pneumonia as a consequence of dementia and cerebral ischaemia - decision affirmed

Legislation

Veteran’s Entitlement Act 1986 (Cth)

Cases

Collins v Repatriation Commission [2009] FCAFC 90

Hill v Repatriation Commission [2009] FCAFC 91

REASONS FOR DECISION

Mr A. Maryniak KC, Member

17 October 2022

1. The Applicant seeks review of a decision to deny a claim for a pension under the Veteran’s Entitlement Act 1986 (Cth) (the Act) in respect of her late husband, Mr Geoffrey Chugg (the veteran).

   background

2. The veteran died, aged 91, on 24 July 2017. He joined the Royal Australian Air Force on 5 January 1944 and was discharged on 26 April 1946. It is agreed that the whole of the veteran’s service constitutes operational service, hence eligible war service under ss 7(1)(a) and 6A of the Act. He served a total of 807 days, excluding 24 days of leave.

3. The first issue to be determined is the veteran’s cause(s) of death and kind of death, which is a question of fact to be resolved upon the evidence before the Tribunal, on the balance of probabilities or to the reasonable satisfaction of this Tribunal. In identifying the medical cause or causes of death, the focus is on the underlying cause of death, not only on the terminal event of death. The Tribunal’s task is to determine whether one or more of the conditions which the veteran suffered from had any real role in the pathological cause of his death.[1]

   [1] Collins v Repatriation Commission [2009] FCAFC 90 at [44] to [52], [84] (‘Collins’); Hill v Repatriation Commission [2009] FCAFC 91 at [19] to [25].

4. The Applicant concedes that she cannot succeed with this review unless ischemic heart disease (IHD) made a contribution to the veteran’s death or kind of death.[2]

   [2] Transcript p2 lines 38 to 44 and Applicant’s Closing Submissions (ACS) dated 21 February 2022 [13].

5. For the purposes of the Act, s 8 provides that the death of a veteran shall be war-caused if, by s 8(1)(b), the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran. Further relevant aspects are agreed by the parties and accepted by the Tribunal, as set out in paragraphs 6 to 8 below.

6. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. The Applicant married the veteran in 1950, having first met him about three months earlier. The veteran was born in August 1925 and died on 24 July 2017.

7. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term ‘dependant’ is defined to include ‘widow’.

8. Section 5E(1) of the Act defines a ‘war widow’ to include a woman who was legally married to a veteran immediately before a veteran’s death. The Applicant was a dependant of the veteran.

9. The Tribunal has considered the documentary and oral evidence before it, particularly the medical evidence relating to the cause of death and kind of death.

   cause(s) of death and kind of death

10. The Applicant submits that ‘first, the Tribunal ought to ascertain whether the material which is in evidence points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him’;[3] although this was clarified in her Reply Submissions.[4] The Tribunal first proceeds to determine the medical cause(s) of death or kind of death.[5]

    [3] ACS [11].

    [4] Applicant’s Submissions in Reply dated 14 April 2022 [3].

    [5] Collins at [50].

11. The Applicant submits that the veteran’s IHD need not be the exclusive or only cause of death; nor need it be the sole or dominant cause of the veteran’s death. The Applicant contends that the IHD made a contribution to the death, in that it ‘was part of a causative chain leading to the veteran’s cause or kind of death’.[6]

    [6] ACS [17].

12. The Applicant accepts the evidence of Professor Cade, Emeritus Consultant in Intensive Care (the expert medical witness engaged by the Respondent), that the veteran was first diagnosed with IHD in 2001; as stated in his report dated 20 December 2020. Professor Cade was the only witness to give expert medical testimony to the Tribunal.

13. The Applicant submits that IHD made a contribution to the Applicant’s death; and that the evidence of Professor Cade and Dr Geoff Young, the forensic pathologist who conducted a post-mortem on the veteran, supports this submission. The latter noting that the veteran had cardiomegaly and associated IHD, and he listed the cause of death as ‘pneumonia in a man with ischaemic heart disease and cardiomegaly’.[7]

    [7] T-Documents (TD) at T16 p65.

14. The Applicant relies upon Professor Cade’s opinion as to a sequence relating to the ‘underlying cause of death’; being in summary, IHD, then atrial fibrillation, cerebral ischaemia (multiple strokes or CVAs), dementia, aspiration, pneumonia then death. On the basis of this sequence of events leading to the death, Professor Cade accepted under cross-examination that IHD made a contribution to the death.[8]

    [8] Transcript p34 lines 42-43.

15. The Applicant submits that IHD was part of the causative chain leading to the veteran’s death and that this view is supported by the evidence of Professor Cade. It is said that IHD played a ‘real role’ in the death.[9]

    [9] ACS [23].

16. The Respondent submits that the Tribunal cannot be reasonably satisfied on the evidence that the veteran’s cause of death was IHD. It too highlights the death certificate and the fact that on the day of the death, Dr Vivian Lee certified the cause of death as aspiration pneumonia, listing dementia as another significant condition. The Respondent points to Professor Cade’s opinion that the terminal event suffered by the veteran was pneumonia and that the veteran’s “dementia (VCI) [vascular cognitive impairment] is likely to have been the direct cause of the veteran’s aspiration and thus his death from pneumonia”; and that the veteran suffered from “non-Alzheimer’s dementia, being ‘multi-infarct dementia’ a kind of vascular cognitive impairment”.[10]

    [10] Report of Professor Cade dated 1 September 2020.

17. The Respondent submits that the veteran’s IHD was too remote to be a medical cause of the death, and it did not make any real pathological contribution to the death. It refers the Tribunal to the unchallenged evidence of Professor Cade that the veteran ceased treatment for his atrial fibrillation with anticoagulants in the period prior to the consequential recurrent strokes which he suffered.  The Respondent further submits, as Professor Cade testified, that it was the recurrent strokes and associated cerebral injury which led to the dementia which caused the aspiration leading to the pneumonia, then death. As the Respondent points out, Professor Cade testified that had the veteran been taking anticoagulants, the recurrent strokes would not have occurred and, importantly, the death would not have occurred when it did. The Respondent submits that this results in a break in any chain of causation; and it means that IHD could not have been one of the medical causes of this death.

18. Dr Vivian Lee recorded that the veteran presented to Box Hill Hospital on 20 July 2017 with aspiration pneumonia and general functional decline in a background of advanced dementia.[11] In his report of 15 January 2018, Dr Young stated that the cause of death was pneumonia in a man with IHD and cardiomegaly. Dr Young’s report also noted that Dr. Linda Illes, forensic pathologist, found significant cerebrovascular disease but no features of advanced Alzheimer’s disease present in the veteran’s brain.[12] The content of the Death Certificate was consistent with the findings of Dr Young.

    [11] TD at T21 p85.

    [12] TD at T16 p64.

19. Professor Cade reported that he agreed with the conclusions that the immediate cause, or terminal or final mechanism, of the veteran’s death was pneumonia (and its pathophysiological consequences of hypotension, hypoxia and cachexia). However, as discussed above, it is not just the terminal event that is relevant here. The Tribunal is to ascertain, on the evidence, the medical cause or causes of the death. Professor Cade reported that Dr Melanie Freeman, Interventional Cardiologist, reported on 23 December 2015 that the veteran’s then recent multiple CVAs or strokes were due to atrial fibrillation, the veteran having ceased the use of Warfarin, an anticoagulant. 

20. Professor Cade stated that the veteran’s dementia (being of a vascular cognitive impairment type) was “likely to have been the direct cause of his aspiration and thus his death from pneumonia. Aspiration associated with dementia is common (perhaps inevitable), typically recurrent and potentially fatal. Additionally, dementia is also likely to have been the cause of the patient’s poor oral intake and thus cachexia, which was an important comorbidity in his final illness”.[13]

    [13] Report of Professor Cade dated 1 September 2020.

21. Although, as the Applicant correctly points out, Professor Cade accepted, under cross- examination, that IHD made a contribution to the veteran’s death, he went on to say that the central core to his sequencing, which commenced with IHD, was the veteran’s cerebral damage – the neurodegenerative damage that was caused by the multiple strokes, with such consequential neurological damage manifest prior to the dementia, noting that the strokes were caused by the IHD and the atrial fibrillation.[14]

    [14] Transcript pp34-35 lines 42-12.

22. Further, Professor Cade testified that the vascular cause of the veteran’s dementia, that is the vascular damage to his brain, was related to the multiple strokes the veteran had suffered, which were a classic complication of atrial fibrillation as per his evidence regarding sequencing. As the arterial fibrillation was not treated with anticoagulants, the consequential multiple strokes occurred.[15] The result of untreated atrial fibrillation is that “the heart rate becomes chaotic and therefore with inadequate flow in the atrium, where the fibrillation is occurring, clots form and can break off” resulting in strokes.[16]

    [15] Transcript p35 lines 41-46.

    [16] Transcript p36 lines 1-7.

23. Professor Cade expanded upon this point in re-examination, stating that the veteran’s preference not to continue with anticoagulants had the consequence of a higher risk of stroke and recurrent strokes. He stated that the reason anticoagulation is strongly recommended in arterial fibrillation is for the prevention of stroke. He was then asked whether the prescription and appropriate use of anticoagulants in the period leading up to the veteran suffering the cerebral events (strokes) would have  arrested the events, so that the veteran would not have died at the time that he did, at least from anything that developed because of the lack of anticoagulants. Professor Cade opined that that was correct.[17]

    [17] Transcript pp36-37 lines 44-2.

24. Professor Cade’s evidence supports the finding that had the atrial fibrillation been treated, the veteran’s death would not have occurred when it did. Furthermore, there is no evidence before the Tribunal which disputes Professor Cade’s expert opinion in this regard. 

25. On balance, having considered all the medical evidence before the Tribunal, whilst acknowledging that the IHD made an initial sequential contribution leading to the death, the Tribunal is not reasonably satisfied on the evidence that IHD was sufficiently proximate in any causative chain to the veteran’s death. The Tribunal finds that the death did not arise from, or was attributable to, the IHD condition of the veteran. The Tribunal is satisfied that the medical causes of death are those subsequent and consequential to the untreated atrial fibrillation as identified by Professor Cade. The Tribunal finds that it was the conditions of cerebral ischaemia (multiple strokes or CVAs), then dementia, aspiration and pneumonia which played the real roles in the pathological cause of death. The Tribunal hence finds that the veteran’s kind of death was aspiration and pneumonia as a consequence of dementia and cerebral ischaemia.

26. In light of the Tribunal’s findings in respect of IHD, it is not necessary to determine any further matters, in circumstances where IHD was the only condition put in issue by the Applicant.

27. The Tribunal affirms the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

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

Associate

Dated: 17 October 2022

Date(s) of hearing:	3 and 10 December 2021
Date final submissions received:	14 April 2022
Counsel for the Applicant:	Natalie Campbell
Solicitors for the Applicant:	Williams Winter Solicitors
Counsel for the Respondent:	John Wallace
Solicitors for the Respondent:	Australian Government Solicitor