Cocks and Repatriation Commission

[2004] AATA 413

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/902

VETERANS'       APPEALS     DIVISION

Re:         ALMA MAY COCKS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             6 May 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS ‑ widow's entitlement ‑ ischaemic heart disease ‑ hypertension ‑ date of clinical onset ‑ anxiety/depressive disorder ‑ whether death related to service

Veterans’ Entitlements Act 1986 ss 8(1), 119 (1)(h), 120(4), 120A

East v Repatriation Commission (1987) 16 FCR 517

McKenna v Repatriation Commission (1999) 86 FCR 144

Re McLeod-Drydenand Repatriation Commission (1998) 53 ALD 428

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Re Sharkey and Repatriation Commission (1988) 15 ALD 782

Re Witten and Repatriation Commission (1998) 54 ALD 605

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

7 May 2004  G.D. Friedman, Member

1.      This is an application by Alma May Cocks (the applicant), widow of George Eddy Cocks (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 2 July 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 20 December 2000, that the veteran’s renal failure, glaucoma, hypertension, aortic stenosis and diabetes mellitus were not related to his  service, and affirmed a decision dated 9 November 2001 that the death of the veteran was not related to his service. 

2.      At the hearing of this matter on 23 April 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T29), with three exhibits (Exhibits A1‑A3) lodged by the applicant and three exhibits (Exhibits R1-R3) lodged by the respondent.

BACKGROUND

4.      The veteran was born on 18 August 1918.  He enlisted in the Australian Army on 3 July 1940 and served in the Northern Territory.  He was discharged on 29 October 1945.  In accordance with the Veterans’ Entitlements Act 1986 (the Act), the period constitutes operational service.

5.      On 8 March 2000 the veteran made application for an increase in pension and lodged a claim in relation to bilateral open angle glaucoma, localised osteoarthrosis of the knees, hypertension, aortic stenosis and diabetes mellitus.  On 5 June 2000 he lodged a claim for renal failure.  On 20 December 2000 the respondent refused the claims.  

6.      On 9 January 2001 the veteran applied to the VRB for review of the respondent’s decision of 20 December 2000.  On 16 February 2001 the veteran died after suffering a heart attack.  The causes of death were certified as heart attack, aortic stenosis, arteriosclerosis, hypertension, renal failure and diabetes.   

7.      On 13 June 2001 the applicant applied for a war widow's pension.  On 9 November 2001 the respondent refused the application.  On 26 November 2001 the applicant applied to the VRB for review of the respondent’s decision of 9 November 2001.  On 2 July 2002 the applicant withdrew the claim for an increase in pension, and the VRB accepted localised osteoarthrosis of the knees as a war‑caused condition.  The VRB affirmed the other decisions.  On 23 August 2002 the applicant sought review of the VRB decision by the Tribunal.  The applicant has since withdrawn the applications in relation to open angle glaucoma, aortic stenosis and diabetes mellitus. 

EVIDENCE

8.      In a written statement dated 30 October 2003 (Exhibit A2) the applicant said that she and the veteran were married on 1 May 1943 and that he was a non‑smoker and a non-drinker.  She stated that the veteran told her that he was issued with salt tablets during his service.  The applicant said that, after his service, the veteran had a liking for salt, often moistening his finger and dipping it into salt on his plate.  She said that he added salt to all his food.  She stated that she understood that the food available in the Northern Territory at the time of his service consisted of salty bully beef and biscuits.  The applicant noted that the veteran suffered from hypertension for most of his life.

9.      Mr I. Cocks, the applicant’s son, gave oral evidence that the applicant was in reasonable health at the time of making her written statement, but that her condition had since deteriorated and that she was unable to give oral evidence to the Tribunal.  Mr Cocks stated that the veteran operated a grocery store in Newport before and after his service.  He said that he recalled the veteran adding salt to his food and dipping his finger in salt on his plate after the evening meal.  Mr Cocks stated that the veteran suffered from hypertension and high blood pressure for a long time, and developed kidney problems.  He said that the veteran had described his experiences in Darwin when the Japanese bombed the harbour.

10.     Under cross‑examination, Mr Cocks explained that the veteran made deliveries most evenings, and on Thursdays, when the veteran ate dinner with his family, he used to consume extra salt from the salt shaker. 

11.     In a written report dated 30 May 2003 (Exhibit A1), Dr R. Collins, consultant forensic pathologist, said that he had reviewed the medical records and was of the opinion that there was no reason to dispute the causes of death as stated on the death certificate, although he said that ischaemic heart disease could have been included.  He said that he agreed with the veteran’s treating doctor concerning the cause of the vascular disease that resulted in renal failure and the terminal heart attack.  Dr Collins added that it was highly likely that renal function was compromised by atherosclerotic disease involving the renal vessels, as a consequence of both hypertension and diabetes mellitus.  Dr Collins stated:

…

It is my opinion that, if it is accepted the late veteran’s longstanding hypertension was as a consequence of his war service, then such service can be implicated in his demise, on a sound pathological basis, through the links between salt intake, hypertension, vascular disease, chronic renal failure and death.

12.     In oral evidence Dr Collins confirmed that hypertension is a factor in ischaemic heart disease.  He said that, if the veteran suffered from an anxiety or depressive state linked to war service, then there would be a connection to heart disease.

13.     Dr J. Irinyi, the veteran’s general practitioner, gave oral evidence by telephone that he had treated the veteran from 1984 until 2001 for a number of chronic complaints.  He said that in 1989 the veteran had complained of a depressive or anxiety disorder, which Dr Irinyi attributed to the dormant trauma suffered by the veteran during the bombing of Darwin.  He said that he prescribed medication for the condition.  He stated that on, 24 May 2000 (T9, pp63-64), he completed a Diagnostic Report – Hypertension for the Department of Veterans’ Affairs in which he listed the date of clinical onset of hypertension as 1948.

14.     Under cross‑examination, Dr Irinyi stated that he specified 1948 in the report because this was the date nominated by the veteran as the first occasion on which the veteran was told that he suffered from hypertension.  In relation to a depressive or anxiety disorder, Dr Irinyi stated that he had diagnosed a mild depressive condition suffered by the veteran.  He agreed that he had not consulted a textbook when making the diagnosis, as he saw no need to do so, with 30 years’ experience in this field as a general practitioner. 

15.     In a written report dated 29 January 2004 (Exhibit R1), Dr M. Wood, consultant in food, nutrition and dietetics, stated that she was asked by the respondent to compile a report about the veteran’s salt consumption and the relationship of that consumption to his war service.  In the course of her research she interviewed the applicant and the applicant’s daughter-in-law.  In relation to salt consumption by service personnel during World War 2, Dr Wood concluded that, assuming consumption  of all of the salt ration (including a 1.5g salt tablet), the average daily quantity of salt ingested by soldiers within Australia in cooking and as table salt was 14.0g daily, and 15.5g daily in the tropics (including Darwin).

16.     Dr Wood stated that her ability to obtain detailed information about the veteran’s dietary history was limited by the applicant’s poor health.  Dr Wood stated that, for the purposes of her report, she erred in the veteran’s favour by overestimating the weight of cooking salt used by the applicant, and adopted the figure of 1g salt per 100g cooked food, rather than her actual estimate of 0.1g salt per 100g.  Dr Wood summarised her findings for the veteran as follows:

Table 2:  Estimated daily salt supplement use

PRE‑WAR	POST‑WAR 1945‑1956	POST‑WAR 1971‑1972
Salt added in the cooking of food for the main cooked meal (400‑500 g)	4 – 5 g	4  ‑ 5 g	4 – 5 g
Salt at table for the main cooked meal	0.25 g	1.0 g	2.5 g
Salt added in the cooking of food at other meals	Unknown	Unknown	Unknown
Salt at table for other meals	Unknown	Unknown	Unknown
Other discretionary salt uses	Unknown	Unknown	0 – 1 g
Estimated total intake of salt supplements	4.3 – 5.3 g	5.0 ‑ 6.0 g	6.5 – 8.5 g

17.     In oral evidence Dr Wood stated that she noted the veteran’s lifestyle and took into account that normally he did not eat a cooked breakfast or lunch.  Under cross‑examination, she agreed that the veteran appeared to enjoy consuming salt, although she was not able to ascertain whether he consumed salt tablets during service, and if so, the quantity consumed each day.  

18.     In a written report dated 13 June 1972 the Shepherd Foundation Multiphasic Health Testing Centre (Exhibit R2, pp44-45), under the heading REPORTED DIAGNOSIS, noted that the veteran Has had high blood pressure starting in the past few months.  In a letter dated 2 September 1975 (Exhibit R2, p53), Dr D. Ellis stated that the veteran said that he …has had mild hypertension for years.

19.     In its decision of 2 July 2002 the VRB stated (at page 9) in relation to hypertension:

…

On the basis of folio 63, the Board is reasonably satisfied that the veteran suffered from this condition.  The date of clinical onset, however, is not as clear-cut.  As pointed out by the Board at the hearing, although the local medical officer had stated that the date of onset was 1948, the veteran had on an earlier claim dated 25 November 1997 (M file) stated that he first became aware of the condition in 1956.  The Board also noted that, in examining the veteran’s service medical records, included as part of the section 137 report, there is no mention of a blood pressure test on enlistment (folio 4) or on discharge (folios 8&9).  There is also no mention of any problems relating to hypertension or high blood pressure during service.     

CONSIDERATION OF THE ISSUES

20. Section 8(1) of the Act provides:

(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:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

21.     The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s 120A.  It provides:

(1)          This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

…

(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);

…

22.     The principles to be applied, in cases where s 120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:

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 ss 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.

23.     The parties agreed that the relevant Statement of Principles (SoP) for ischaemic heart disease is N° 53 of 2003 as amended by N° 9 of 2004.  Factor 5(a) of the SoP provides:

…

(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or

…

The relevant SoP for hypertension is N° 35 of 2003 as amended by N° 3 of 2004.  It defines hypertension as :

2.(b)… permanently elevated blood pressure, evidenced by:

(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or

(ii)the regular administration of antihypertensive therapy to reduce blood pressure,

24.     The definition of hypertension excludes temporary elevations in blood pressure.  For hypertension or death from hypertension to be related to service, factor 5(c) of the SoP requires the veteran to have been:

…

(c)ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension; …

In paragraph 8 of the SoP "salt supplements" means salt added to food when cooking or eating, or salt contained in salt tablets.

25.     Factors 5(n) and 5(o) also require that the veteran be:

(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension;

and

(o)suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension;

In paragraph 8 of the SoP:

"clinically significant anxiety disorder" means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;

"clinically significant depressive disorder" means any depressive disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;

and

"DSM-IV" means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;

26.     Mr De Marchi submitted that the applicant relied upon a reasonable hypothesis that the veteran suffered from hypertension which was war-caused, and that there was a link between hypertension and ischaemic heart disease, which was one of the causes of the veteran’s death.  He said that, for this reason, the veteran’s death was war-caused.

27. Mr De Marchi noted that the veteran was deceased and the applicant was unable to give oral evidence because of her frail health. He pointed to the passage of time since the veteran’s service and relied on the beneficial nature of the legislation, particularly s 119(1)(h). In respect of factor 5(c) of SoP N° 35 of 2003, concerning hypertension, he submitted that the written evidence of the applicant and the oral evidence of her son demonstrated that the veteran’s liked salt and his high level of consumption. Mr De Marchi noted that, in Dr Wood’s report, the veteran’s consumption of salt during service was 15.5g per day, which was considerably higher than the requirement in the SoP of 12g per day. He said that the evidence pointed to the veteran developing hypertension shortly after service, and that the Tribunal should conclude that the veteran satisfied factor 5(c).

28.     In respect of factors 5(n) and 5(o) Mr De Marchi stated that the only medical evidence was from Dr Irinyi, who has had 30 years’ experience in diagnosing and treating anxiety and depressive disorders.  He said that the veteran had told Dr Irinyi of the trauma he suffered as a result of the Japanese bombing of Darwin, and that Dr Irinyi had correctly diagnosed and treated the veteran for mild anxiety or depression.  Therefore, the veteran satisfied either of these factors.  Mr De Marchi submitted that, because of the unreliability of the evidence, particularly medical records concerning the veteran‘s blood pressure at the time of enlistment or discharge, the Tribunal could conclude that clinical onset of hypertension occurred at the time of or during the veteran’s service, or after discharge.     

29.     Mr Rudge agreed that if the veteran satisfied the criteria for the SoP concerning hypertension, the applicant would establish the link with ischaemic heart disease and succeed in her application.  However, Mr Rudge submitted that there was insufficient information available to the Tribunal for an accurate finding on the date of clinical onset of hypertension, as a number of dates had been suggested by the veteran at various times after service.  He said that, at the earliest possible onset (1948), the veteran did not satisfy factor 5(c) of SoP N° 35, because the veteran’s salt consumption, even when increased by a factor of 10 by Dr Wood, did not meet the required level of consumption in the post‑war period.

30.     Mr Rudge noted that, in respect of factors 5(n) and 5(o) of the SoP, Dr Irinyi had diagnosed a mild anxiety or depressive disorder, but had not made the diagnosis under the criteria contained in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, (DSM‑IV).  He said that, for this reason, the veteran had not suffered from a clinically significant anxiety or depressive disorder.  Mr Rudge also stated that the only evidence on the date of clinical onset of an anxiety or depressive disorder was Dr Irinyi’s comment that the veteran complained of symptoms in 1989.  Mr Rudge submitted that, if this was the date of clinical onset, then the applicant would be unable to demonstrate that the veteran satisfied the criteria for anxiety and depression for a period of six months immediately before the clinical onset of hypertension.

31.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.

32.     In Repatriation Commission v Hancock (2003) 37 AAR 383 (at 38) Selway J set out the correct approach, to be followed by the Tribunal, as follows:

…

(a)       First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out….  .

(b)       Next, the AAT was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death.

(c)       If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death".

(d)       If only a determination under s 180A(2) is applicable, then the application must fail.

(e)       If no statement of principle and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.

33.     In following the approach laid down in Hancock, the Tribunal finds that the pre-conditions, other than causation, have been made out because the applicant’s husband was a veteran, the veteran had died and the applicant was his widow.  In relation to a determination, to the Tribunal’s reasonable satisfaction (s 120(4) of the Act), of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the causes of death were heart attack, aortic stenosis, arteriosclerosis, hypertension, renal failure and diabetes.   

34.     On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran included ischaemic heart disease, identified in SoP N° 53 of 2003 as amended by SoP N° 9 of 2004.   

35.     As there is an SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death.  Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable.  That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him.  If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.  In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated (at 596):

If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…

36.     In respect of the sub-hypothesis that ischaemic heart disease was linked to hypertension, each sub-hypothesis must be proven (McKenna v Repatriation Commission (1999) 86 FCR 144). In East v Repatriation Commission (1987) 74 ALR 518 (at 534) the Federal Court stated that a reasonable hypothesis requires more than a possibility; it must be pointed to by the facts.

37.     There is no definition of the term clinical onset in the SoP.  In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal, after considering a number of expert medical opinions as to the meaning of the term, said (at para 23):

. . . we consider that there is a clinical onset of a disease, 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 that time.

In Re McLeod-Drydenand Repatriation Commission (AAT 13386, 21 October 1998) the Tribunal followed this reasoning:

…

We consider that the term "clinical onset" means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition.

38.     In ReWitten and Repatriation Commission (1998) 54 ALD 605 the Tribunal reviewed earlier decisions and adopted the definition of clinical onset as set out in Re McLeod-Dryden.  At page 608 the Tribunal concluded:

…A disorder may not, in fact, have been diagnosed during the relevant period…but, with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period.

39.     In the matter before the Tribunal the date of clinical onset of hypertension is unclear.  At its earliest, clinical onset would probably have been in 1948, the date referred to by Dr Irinyi based on a history of hypertension given by the veteran in 2000, although there is no medical evidence to support this.  Another possibility is 1956, the date nominated by the veteran in 1997, although once again there is no medical evidence.  A further possibility is 1972, suggested in a report by the Shepherd Foundation, although the report refers only to the veteran’s high blood pressure over the previous few months.

40.     In relation to factor 5(c) of SoP N° 35 of 2003 as amended by SoP N° 3 of 2004 concerning hypertension, the Tribunal takes into account the assumptions made by Dr Wood, the limitations of her research and the conservative findings which increased the level of salt consumption by the veteran by a factor of 10.  The Tribunal nevertheless accepts her evidence.  Even allowing for a margin of error, the veteran’s salt consumption in the post-war period was significantly less than 12g per day, so the veteran did not satisfy factor 5(c), taking into account any of the possible dates of clinical onset of hypertension.

41.     In relation to factors 5(n) and 5(o) of SoP N° 53 of 2003, the Tribunal accepts the evidence of Dr Irinyi, that it was in 1989 that the veteran first complained of symptoms that Dr Irinyi diagnosed as an anxiety or depressive condition and treated with medication.  Although the emotional trauma experienced by the veteran may have remained dormant since the bombing of Darwin, the Tribunal accepts Mr Rudge’s submission that Dr Irinyi appeared not to have used the criteria in DSM‑IV to make his diagnosis.  Furthermore, there is no persuasive medical evidence that the veteran suffered from a clinically significant anxiety or depressive disorder for the six months immediately before the clinical onset of hypertension, taking into account any of the possible dates of clinical onset of hypertension.

42.     The Tribunal takes into account the beneficial nature of the Act and the submission by Mr De Marchi on the passage of time, the deficiency in official records and that direct evidence from the veteran was not possible (s 119(1)(h) of the Act).  The Tribunal also takes into account that the applicant’s frail health prevented her from giving oral evidence and providing complete answers to questions posed by Dr Wood during her interview.  In Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in her favour, because of the absence of facts to support her application.

43.     Overall, for the reasons given, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP concerning hypertension, and therefore the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis.

44.     Therefore, In respect of the sub-hypothesis that ischaemic heart disease was linked to hypertension, there was no persuasive medical evidence that would lead the Tribunal to conclude that hypertension-related ischaemic heart disease was a medical cause of death (or kind of death) (Hancock).   As a result, the claim must fail.

DECISION

45.     The Tribunal affirms the decision under review.

I certify that the forty-five [45] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  23 April 2004

Date of decision:                   6 May 2004

Advocate for applicant:         Mr D. De Marchi
Solicitor for applicant:           De Marchi & Associates

Advocate for respondent:      Mr J. Rudge

Solicitor for respondent:        Advocacy Section, Department of Veterans’ Affairs