Cragg and Repatriation Commission
[2006] AATA 917
•27 October 2006
DECISION AND REASONS FOR DECISION [2006] AATA 917
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1470
VETERANS' APPEALS DIVISION ) Re THELMA CLARE CRAGG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Ms N Isenberg, Senior Member
Date27 October 2006
PlaceGosford
Decision
The Administrative Appeals Tribunal affirms the decision under review.
..............................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that the veteran’s death from Alzheimer’s disease was war-caused – consideration of Statement of Principles – the Tribunal decides that the decision under review is affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Statement of Principles – Instrument No 17 of 2001 concerning Alzheimer’s disease
Repatriation Commission v. Hancock [2003] FCA 711
Fitzgerald v Penn (1954) 91 CLR 268
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
27 October 2006 Ms N Isenberg, Senior Member 1. The decision under review is the decision of the Repatriation Commission dated 2 February 2005 as affirmed by the Veterans’ Review Board (“the VRB”) on 23 September 2005 that refused the claim that William Cragg’s death was service related.
Issue before the Tribunal
2. The issue to be considered by the Tribunal is whether the veteran’s “kind of death” was Alzheimer’s disease and was that condition war-caused.
Background
3. Mr Cragg served in the Royal Australian Navy between 2 September 1940 and 26 September 1945.
4. The following conditions were previously accepted as war-caused:
·perceptive deafness with tinnitus
·anxiety state
5. The following conditions were not accepted as war caused:
·rectal polyp
·functional dyspepsia
·vaso-vagal attacks
·haemorrhoids
·deflected nasal septum, and
·death
Legislative Background
6. Section 8 of the Veterans’ Entitlements Act 1986 (“the VE Act”) provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“War-caused death
(1) Subject to this section and section 9A, 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;
…
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service;
…”
7. “Operational service” is defined in section 6C. A person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in section 5B(1) by reference to Schedule 2 of the VE Act and includes the veteran’s service in the Royal Australian Navy during World War II.
8. Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow.
9. As the veteran had operational service the determination of whether his death was war-caused is to be made by applying subsections 120(1) and 120(3).
10. Subsections 120(1) and (3) of the Act require me to find that the veteran’s death was war‑caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. I must be so satisfied if I am of the opinion that the material before me does not raise a reasonable hypothesis to connect the veteran’s death with his service.
11. The Repatriation Medical Authority (“RMA”) was established under section 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (“SoP”) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
12. Mrs Cragg's contention in her original claim, in her application for review to the Veterans’ Review Board and before me, was that her husband's service in the Navy caused him to be a heavy smoker and drinker and it was his excessive drinking that led to his Alzheimer's disease.
13. The arduous nature of the veteran’s service was set out in some detail in the report of Dr Anderson, consultant psychiatrist dated first of March 1996. In diagnosing the veteran with chronic post traumatic stress disorder arising from his service the doctor also observed that the veteran had tried to cope with his difficulties with the aid of alcohol. I note that the veteran’s “anxiety state” had been accepted in 1982.
14. My first task in the present matter is to determine, on the balance of probabilities, the “kind of death” suffered by the veteran: see Repatriation Commission v. Hancock [2003] FCA 711.
15. It was noted that the veteran may have suffered pneumonia in the days before his death, but this was the terminal event in his demise and not a cause of death in itself. In determining the “kind of death” I must identify the real or operative cause of death as opposed to the final stage of the process of dying. To adopt the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276, I must ascertain whether a particular illness or disease can fairly and properly be considered the cause of death.
16. The cause of the veteran’s death was certified to be Alzheimer’s disease. There was no dispute that the veteran‘s Alzheimer’s disease was the cause of his death.
17. Ms Cairns, Mrs Cragg’s friend who assisted her in the hearing referred me to the Department of Veterans’ Affairs diagnostic protocol in respect of Alzheimer's disease. In particular she referred me to the following extract:
“Alzheimer’s disease is a diagnosis of exclusion that can only be definitively confirmed at autopsy. However, it can be accepted on clinical grounds when other causes of dementia have not been identified. It accounts for more than half of all dementia cases.
The other common causes of dementia are vascular (multi-infarct) dementia (20 to 25% of cases), alcoholism, Parkinson’s syndrome and drug/medication intoxication.”
18. As I discussed at the hearing there was no evidence that the veteran’s condition was other than Alzheimer’s disease: the doctors (Drs J. Delohery in his report of 21 August 2000 and Dr D. Subau in his report dated 8 February 2001) refer to that type of dementia and the medication taken by the veteran with some relief of symptomatology (Aricept) was for the treatment of Alzheimer’s disease, according to MIMS (the manual of drug information).
19. All the evidence was that the veteran suffered Alzheimer’s disease and I therefore find that the kind of death was from Alzheimer’s disease.
20. Alzheimer’s disease is the subject of a SoP which contains two factors as follows:
“(a) suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease; or
(b) inability to obtain appropriate clinical management for Alzheimer’s disease.”
21. Where a SoP exists I must apply the test prescribed by section 120A(3), as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“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). ….
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.”
22. In considering whether there is an hypothesis connecting Mr Cragg’s death with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis.
23. Clearly factor (b) does not apply.
24. In relation to factor (a) I note the reference in the hospital notes that the veteran had been an ex-boxer. Mrs Cragg, who had known her husband for 56 years (excluding a few years before his service where she knew him vaguely through her brother-in-law) did not know him to be a boxer. She said he did get into fights when he was drunk and would experience cuts and gashes as a result.
25. There was no material however that he had experienced a head injury, defined in the SoP as follows:
“8. …
“head injury” means trauma to the head which results in:
(i) a fracture of the skull; or
(ii) loss of consciousness for more than 15 minutes, or
(iii) post-traumatic amnesia for more than 30 minutes; or
(iv) a cerebral laceration or contusion.”
26. I note that his service medical documents do not record any head injury.
27. Mrs Cragg’s contention was that her husband’s condition was associated with his drinking. It was acknowledged that this was not a factor in the SoP.
28. For the above reasons, I consider that the hypothesis raised by the material before me is not consistent with any of the factors in the Alzheimer’s disease SoP, and so the SoP does not uphold the asserted hypothesis connecting Mr Cragg’s death with the circumstances of his operational service. As a result, the hypothesis is not reasonable, and by virtue of section 120(3) of the VE Act, I must find beyond reasonable doubt that there is no sufficient ground for determining that Mr Cragg’s death was war-caused; and as a result, Mrs Cragg’s claim for a widow’s pension must fail.
Conclusion
29. In all of the circumstances, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was related to his operational service.
30. I am sympathetic to Mrs Cragg’s position that her husband’s service in World War II had had an adverse effect on his health, and that she had supported him through his ill-health. Sadly, not all conditions suffered later in life can be related back to those years spent in the defence force. Where a Statement of Principles has been issued for a particular condition relating to the circumstances of a veteran’s death, determining authorities, including this Tribunal, are bound by the relevant Statement of Principles, and no discretion is permitted.
31. I have noted the veteran’s arduous service in the defence of his country and I extend my sympathy to the applicant for her loss after a long and sometimes turbulent relationship. There is, however, no medical evidence before me to connect the veteran’s death with his service.
Decision
32. For the above reasons, I affirm the decision under review.
I certify that the 32 preceding paragraphs are a true
copy of the reasons for the decision herein of Ms N Isenberg, Senior MemberSigned: Associate
Date of Hearing 13 October 2006
Date of Decision 27 October 2006
Representative for the Applicant Self-Represented
Advocate for the Respondent Jane Warmoll,
DVA Services Team
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