Clarke and Repatriation Commission

Case •

[2001] AATA 938

•

12 November 2001

DECISION AND REASONS FOR DECISION [2001] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1779

VETERANS' APPEALS DIVISION        )          
           Re      DOREEN CLARKE           
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date12 November 2001

Place Sydney

Decision       The Tribunal determines that the decision under review be affirmed.        

[sgd] Dr J D Campbell
  Member

CATCHWORDS
Veterans' Settlements - War Caused Death - Parkinson's Disease _ Parkinson's Syndrome - Cerebrovascular Accident - Osteoarthritis - Deep Vein Thrombosis - Widows Pension

Veterans' Entitlement Act 1986 - Sections 120, 120A

Statement of Principles Instrument No 122 of 1996 concerning Parkinson's Disease and Parkinson's Syndrome;
Statement of Principles Instrument No 41 of 1998 concerning Osteoarthritis as amended by Instrument No 19 of 1999;
Statement of Principles Instrument No 52 of 1999 concerning Cerebrovascular Accident;
Statement of Principles Instrument No 43 of 1998 concerning Deep Vein Thrombosis; and
Statement of Principles Instrument No 23 of 1998 concerning Cerebrovascular Accident.

REASONS FOR DECISION

Dr J D Campbell, Member             

  1. In this matter, Mrs Doreen Clarke ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 4 September 1998 which determined that the cause of death of her husband, Mr Lawrence Clarke ("the late veteran") was not related to service. This decision was affirmed by the Veterans' Review Board ("VRB") in their decision dated 29 July 1999.

  2. A hearing was held before the Tribunal on 16 July 2001 at which Mrs Clarke presented oral evidence. Mrs Clarke was self-represented and the Respondent was represented by Mr Godwin, an advocate from the Department of Veterans' Affairs.

  1. The following material was placed into evidence before the Tribunal::
    Exhibit No  Description             Date  
    T1-T15 P1-76 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
    A1      Statement of Mrs Clarke    19 April 2001           
    A2      Bundle of documents from St George Hospital 1 February 2000      
    R1      Clinical Notes from St George Private Hospital             
    R2      Clinical Notes from MacMahon St Family Practice                   
    R3      Clinical Notes from department of Veterans' Affairs                
    R4      Respondent's Statement of Facts and Contentions                 

issues

  1. The relevant issue in this matter is whether the late veterans' death was war- caused.
    legislation

  2. The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 120(1), (3) and 120A, as follows:

    "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.
    Note: This subsection is affected by section 120A.
    …
    (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:

    (a) that the injury was a war-caused injury or a defence-caused injury;
    (b) that the disease was a war-caused disease or a defence-caused disease; or
    (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.
    Note: This subsection is affected by section 120A."

The relevant Statement of Principles in this matter are:

  • Statement of Principles Instrument No 122 of 1996 concerning Parkinson's Disease and Parkinson's Syndrome;

  • Statement of Principles Instrument No 41 of 1998 concerning Osteoarthritis as amended by Instrument No 19 of 1999;

  • Statement of Principles Instrument No 52 of 1999 concerning Cerebrovascular Accident;

  • Statement of Principles Instrument No 43 of 1998 concerning Deep Vein Thrombosis; and

  • Statement of Principles Instrument No 23 of 1998 concerning Cerebrovascular Accident.

background and review of documentation

  1. Mrs Clarke lodged an application for a widow's pension with the Respondent on 1 September 1998, claiming that her late husband's death was causally related to service.   In her application, Mrs Clarke stated that her late husband had died at St George Hospital on 12 July 1998 and that the cause of death was an intra cerebral haemorrhage, anticoagulation for axillary veins thrombosis and Parkinson's Disease (T4, T5).

  2. Mrs Clarke stated that her late husband suffered from stress and anxiety and peer pressure; that he was a heavy smoker and that he use to drink a lot to help him forget the past (T4).

  3. The late veteran had experienced operational service during World War II and the following conditions were accepted as war caused diseases and/or injuries:

  • Sensori neural Deafness

  • Peplic Ulcer disease

  • Post Traumatic Stress Disorder

  1. Claims for Parkinson's Disease, chest pain and lung collapse, to be accepted as war caused diseases were rejected by the Respondent in late 1997.

  2. On 4 September 1998 the Respondent notified Mrs Clarke that the death of the late veteran was not related to his service (T6).

  3. On 1 February 1999 the patient advocate from St George Hospital wrote  to the Applicant indicating that an amended death certificate had been forwarded to the Registrar of Births, Deaths and Marriages, which nominated the cause of death of the late veteran as (Exhibit A2):

  • Intracerebral haemorrhage – 7 days

  • Anticoagulation for axillary veins thrombosis  - 3 months

  • IV therapy for septic arthritis – 3 months

  • Osteoarthritis – years

  • Parkinson's disease – years

  1. On 29 July 1999 the Veterans' Review Board affirmed the decision made by the Repatriation that the late veteran's death was not causally related to his service (T9).
    evidence of mrs clarke

  2. Mrs Clarke stated that she married her late husband on 5 February 1949, having known his family since before the war. Mrs Clarke had little knowledge of what her husband did in New Guinea and overseas, for when she asked her late husband would reply that it was better not to know.

  3. Mrs Clarke said her late husband had a bad ulcer, was very stressed, had extreme difficulties sleeping and was easily upset over minimal things. Mrs Clarke stated that in the later years he became very ill, was on many medications and that she had a full time job looking after him (Exhibit A1).

  4. Mrs Clarke stated that her late husband would have a drink and smoke socially at home, but this decreased as his illness progressed.
    clinical notes of macmahon street family practice

  5. In a letter dated 27 March 2000, Dr Bennett, a General Practitioner within the practice, reviewed the Clinical notes relating to the late veteran, which she summarised in the following terms:

  • no reference to previous definite strokes;

  • issue of whether it was Parkinson's disease or a more complex diffuse degenerative process (Parkinson's Syndrome); and

  • no reference to smoking or drinking habits.

  1. The Clinical notes also reveal an admission in March/April 1998 in which the late veteran was treated with intravenous therapy for bilateral ankle and knee pain. Also, there is evidence of lung infection and some ventilation irregularities of the lower left lung in 1986 with episodes of cough and bronchitis thereafter. An episode of painful and hot swelling of his right ankle was noted in November 1982, which settled with indocid therapy (Exhibit R2).
    clinical notes of department of veterans' affairs

  2. Within a bundle of clinical notes from the Department of Veteran's Affairs, the Tribunal observes the summary of the late veteran's pulmonary difficulties by Professor Schonell, that the late veteran ceased smoking in 1993 and that he did not consume alcohol in 1979.  Further, in a report by Dr Empson, a Consultant Psychiatrist  dated 11 October 1997, the late veteran is recorded as stating that he gave up smoking after the war and  has never been a drinker (Exhibit R3).
    submissions

  3. Mrs Clarke contended that her late husband's death was due to a variety of diseases, all of which had been contributed to in some way by her late husband's stress, which was a consequence of his war service.

  4. The Respondent contended that, while the late veteran was suffering from war caused peptic ulcer disease and post traumatic stress disorder, any of the late veteran's smoking and drinking habits that may have existed, were not at the levels required to meet the necessary factors contained within the relevant Statement of Principles.
    consideration and findings

  5. In reviewing the material before it, the Tribunal has no difficulty in accepting the reviewed causes of death of the late veteran. Accordingly, the Tribunal finds that the cause of death of the late veteran was:

  • Intracerebral haemorrhage – 7 days

  • Anti coagulation for auxiliary veins thrombosis – 3 months

  • IV Therapy for septic arthritis – 3 months

  • Osteoarthritis - years

  • Parkinson's Disease/Parkinson's Syndrome – years

  1. In addressing the condition of Parkinson's Disease/Parkinson's Syndrome, the Tribunal turns to a consideration of Statement of Principles ("SoP") Instrument No 122 of 1996 concerning Parkinson's Disease and Parkinson's Syndrome. In considering each of the factors nominated within paragraph five of the Instrument, the Tribunal is unable to identify, from the material before it, any material which would point to a hypotheses connecting the late veteran's death from Parkinson's disease/Parkinson's Syndrome with his service. In essence a hypothesis cannot be raised from the material before the Tribunal, and hence a casual connection between service and death cannot be established in relation to Parkinson's Disease/Parkinson's Syndrome.

  2. In considering the late veteran's Cerebrovascular Accident, the Tribunal has examined both the SoP, Instrument No 52 of 1999 concerning Cerebrovascular Accident, this being the SoP current at the time of the Tribunal's consideration, and the earlier SoP Instrument No 23 of 1998, being the SoP current at the time of the primary determination. The Tribunal concludes that in relation to this matter, there being no material differences in the relevant factors, the latter SoP is the pertinent SoP.

  3. There are four factors pertinent to this matter, namely factors 5(c), (d), (e), (m) (i). In relation to factor 5(c), there is a requirement that there must be material pointing to the late veteran suffering from panic disorder before the clinical onset of the cerebrovascular accident. In reviewing the material before it, the Tribunal cannot elicit any material which would point to such a hypothesis, and thereby any claim linking the late veteran's death to his service by way of this factor must fail.

  4. In addressing factor 5(d), the Tribunal notes that the late Veteran, by virtue of his Parkinson's Disease/Parkinson Syndrome was unable to undertake more than a mildly strenuous level of physical activity for at least five years immediately prior to the onset of his cerebrovascular accident. The Tribunal, in noting this, finds that the late Veteran does not satisfy factor 5 (d), as the disease causing the inability, that is the Parkinson's Disease/Parkinson's Syndrome, is not war caused.. Again, the Tribunal finds that the Applicant must fail for want of a hypothesis being pointed to by the material .

  5. In relation to factor 5(e), the Tribunal observes that there is no material before it which points to the late veteran consuming alcohol at the level nominated for at least one year before the clinical onset of cerebrovascular disease. The Tribunal again finds that the Applicant's claim must fail for want of raising facts necessary to satisfy the elements contained within factor 5(e).

  6. In addressing factor 5(m)(i) there is material which points to the late veteran undergoing anticoagulant therapy for axillary vein thrombosis at the time of the clinical onset of cerebrovascular accident. Further, the material points to the late veteran receiving intravenous therapy for septic arthritis, which lead to the development of the axillary veins thrombosis.

  7. In pursuing the casual chain, the Tribunal notes that factor 5(b) of SoP Instrument No 43 of 1998 concerning Deep Vein Thrombosis nominates trauma to the affected vein within sixty days before the clinical onset of Deep Vein Thrombosis. The material certainly points to this as occurring with the intravenous therapy for the late veteran's septic arthritis.

  8. In considering the late veterans' arthritis, the Tribunal observes that the material points to the late veteran having arthritis and indeed septic arthritis for which the intravenous therapy was commenced. The Tribunal, in considering whether the late veteran's osteoarthritis was casually related to war service, turned to a consideration of SoP Instrument No 41 of 1998 as amended by Instrument No 19 of 1999 concerning Osteoarthritis. In considering all the material before it, the Tribunal concludes that there is no material which points to the facts raising a hypothesis linking the late veteran's Osteoarthritis with his war service and, as such, there is no material which points to a hypotheses linking the late veteran's service with any of the facts nominated in paragraph 5 of the  relevant SoP.

  9. With the failure by the Tribunal to find that the late veteran's Osteoarthritis was a war-caused disease, the causation chain is broken, as the intravenous therapy for the Septic Arthritis and the development of Deep Vein Thrombosis, and the institution of anticoagulant therapy were not initiated as part of therapy for a war-caused disease.

  10. As a consequence, the Tribunal concludes that the following conditions are non war caused disabilities:

  • Osteoarthritis

  • Septic Arthritis

  • Deep Vein Thrombosis

  • Cerebrovascular accident

in that the basic casual link in the chain, Osteoarthritis, is not a war caused disease.

  1. Further, the Tribunal, in finding that the late veteran's Parkinson's Disease/Parkinson's Syndrome was not a war caused disease, concludes that the late veteran's death was not casualty related to his service and that the Applicant's claim must fail.
    determination

  2. The Tribunal determines that the decision under review be affirmed.

    I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

    Signed: R Quinn     .....................................................................................
      Associate

    Date/s of Hearing  16 July 2001
    Date of Decision  12 November 2001
    Counsel for the Applicant        self-represented             
    Solicitor for the Respondent    Mr Godwin

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