Creamer and Repatriation Commission

[2008] AATA 1015

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1015

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0057

VETERANS' APPEALS DIVISION		)
Re		OLIVE CREAMER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Mr R G Kenny, Member

Date12 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd]..................

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – widow’s pension – war-caused death – whether death of veteran by septicaemia, diverticulitis and diverticulosis was attributable to any eligible war service – standard of proof – death was not war-caused – decision under review affirmed.

Veterans’ Entitlements Act 1986 s 8(1), 13(1), 120(1), 120(4), 120B

Hayes v Repatriation Commission [2005] FMCA 125

REASONS FOR DECISION

12 November 2008 Dr M Denovan, Member    
Mr R G Kenny, Member

INTRODUCTION

1.      Mrs Creamer is the widow of a veteran who served in the Australian Army between 13 September 1941 and 3 May 1944, including service outside of Australia. The late Mr Creamer suffered from chronic airflow limitation and scars of ulcers on both legs. These were his only accepted war-caused disabilities at the time of his death, on 3 March 2005. The death certificate indicates that Mr Creamer died from septicaemia, diverticulitis and diverticulosis. Mrs Creamer sought a pension on the basis that her late husband’s death was attributable to his war service due to one or both of his accepted disabilities.

ISSUE

2.      The issue that we have to decide is whether Mr Creamer’s death was related to his period of army service.

Applicant’s case

3.      Mrs Creamer claimed that her late husband’s ulcer scars on his legs or his chronic airflow limitation contributed to his death. On 12 September 2007 the Veterans’ Review Board affirmed the original delegate’s decision refusing a war widow’s pension.

4.      Mrs Creamer told us that her late husband developed leg ulcers whilst serving in New Guinea, and that it took seven months for them to heal. The ulcers reoccurred all his life, the most recent occasion was two years prior to his death. Mrs Creamer contended that the infection that was responsible for the original ulcers stayed in Mr Creamer’s body, and as well as causing recurrent leg ulcers, was likely responsible for a bladder infection Mr Creamer suffered from on one occasion, and for mouth ulcers that he suffered in the weeks prior to his death. Mrs Creamer contended that the infection would likely have infected other areas of his body, and could have been responsible for Mr Creamer’s diverticulitis or septicaemia or both. Mrs Creamer also contended that infection may have lead to amyloid disease, and that this condition may have contributed to Mr Creamer’s death.

5.      Mrs Creamer, with the assistance of her daughter, Ms Elson, provided a number of articles downloaded from the Internet, including articles from the Mayo Clinic, that she claimed supported her contentions, and these are included in the evidence before us. One of these articles indicates that it is possible for military personnel serving in the tropics to contract a chronic strongyloides stercoralis infection (worm), and to harbour that infection, undiagnosed for 30 to 40 years. Mrs Creamer argued that this worm infection might have been responsible for her late husband’s diverticulosis.

6.      Ms Elson also gave evidence by telephone to the Tribunal. She contended that Dr Chan, her father’s general practitioner was not a specialist in infectious disease, and so he was not in a position to determine whether her late father had a chronic infection. She further contended that the only way that amyloid disease can be tested is by biopsy, and as her father did not have such testing performed, it is possible that he did have amyloid disease and that the condition contributed to his death.

7.      Mrs Creamer told us that 11 years ago she had to get her late husband to the bathroom in the night and help to remove sputum that he was choking on.  She said that prior to his death he was being treated with Bricanyl and Ventolin inhalers. Mrs Creamer contended that it was likely his impaired respiratory state would have contributed to her late husband’s death.

CONSIDERATION AND FINDINGS

8. Entitlement to widow’s pension arises under s 13(1) of the Veterans’ Entitlements Act 1986 (VE Act) if a veteran’s death was war caused. Section 8(1) of the VE Act provides that the death of a veteran is war caused if the injury or disease from which the veteran died was contracted during his or her eligible service. The standard of proof that we must use to determine the cause of death is that of reasonable satisfaction as set out in s 120(4) of the VE Act. Once the cause of death has been decided, the provisions of s 120(1) and s 120(3) apply and we must use the reasonable hypothesis standard of proof to determine whether there is a connection between the circumstances of service and the death of the veteran. Section 120B requires us to take into account any Statement of Principles (SoP) that exist in relation to that connection.

9.      The condition bringing about death of the late veteran in this case is in dispute. Mrs Creamer accepts that septicaemia and diverticulitis were conditions that contributed to her late husband’s death, however she contends that other war caused conditions also contributed to his death. Whilst there is no need to show a material contribution, a condition must be an integral part of the kind of death for it to be found to have contributed to the kind of death[1].

[1] Hayes v Repatriation Commission [2005] FMCA 125.

10.     The late veteran’s treating general practitioner, Dr B Chan has provided reports dated 20 June 2005, 15 November 2005, and 1 December 2006. Dr Chan told us that he attended the veteran in the weeks preceding his death. Dr Chan said that Mr Creamer was diagnosed with diverticulosis in 1984 and that he had recurrent bouts of diverticulitis from that time forward. Dr Chan said that he was called to the home of the late veteran on 9 November 2004. At that time Mr Creamer had abdominal tenderness and an elevated temperature and was vomiting. Dr Chan treated Mr Creamer with antibiotics, and other medications. Mr Creamer’s condition did not improve and Dr Chan admitted him to the Peninsula Private Hospital on two occasions under the care of a specialist physician and a specialist surgeon. Mr Creamer returned home, however his condition continued to decline and Dr Chan last saw Mr Creamer two days prior to his death, on 1 March 2005 in his home. Dr Chan said that he was sure the cause of death was septicaemia secondary to diverticulitis, which was in turn, secondary to diverticulosis. Dr Chan told us that the clinical history was entirely consistent with the finding that the cause of death was septicaemia secondary to diverticulitis, secondary to diverticulosis.

11.     Dr Chan said that Mr Creamer had no ulcers at the time of death and so leg ulcers could not have been the cause of septicaemia. Dr Chan dismissed the suggestion that Mr Creamer may have suffered from a chronic infection since his war service. Dr Chan said that over the many years that he treated Mr Creamer he performed a number of blood tests, including multiple biochemical analysis, and full blood counts, and had the late veteran had a chronic infection, and/or a chronic strongyloides infection, abnormalities indicative of such infection would have been apparent in those pathology results. Dr Chan told us that Mr Creamer had chronic scars on the legs, that the skin over these scars was easily traumatised, and for that reason he was prone to leg ulcers. Whilst Mr Creamer had recurrent leg ulcers he did not have chronic leg ulcers.

12.     There is a report of cardiologist Dr M West undated, prepared at the request of the then solicitors for the applicant. Dr West did not know the veteran and based his opinion on the material provided to him.  Dr West opined that septicaemia resulting from diverticulosis is an uncommon cause of death however he concluded that as these were the conditions identified by the medical personnel at the time of death, their view should be given appropriate weight. Dr West speculated about a number of other possible causes of death but he did not identify any other causes that he thought likely contributed to the veteran’s death.

13.     Dr West raised the possibility of chronic infection causing amyloid disease, and that this in turn may have contributed to the late veteran’s death. Dr West indicated that he thought amyloid disease would be an unlikely cause of death. Dr Chan agreed. He told the Tribunal that Mr Creamer showed no signs of having either a chronic infection or amyloid disease, and for that reason he never underwent any diagnostic tests for that condition.

14.     In 1997 Mr Creamer was having some respiratory problems due to his chronic airflow limitation. That is the evidence of the applicant, Dr Chan and physician Dr Karrasch, who assessed the veteran in that year. There is a report from Dr Karrasch dated 15 April 1997. Dr Chan told us that Mr Creamer had only mild lung trouble whilst he was under his care, and that there was no suggestion that respiratory problems played any role in the death of the veteran. In his report, Dr West opined similarly.

15.     We consider that the material before us indicates that on balance the cause of death of Mr Creamer was septicaemia secondary to diverticulitis, which in turn was caused by diverticulosis. That Dr Chan was the late veteran’s treating doctor for many years, and attended the veteran in the weeks prior to his death is, in our opinion, reason to give his opinion considerable weight. There is no reasoned medical opinion that raises a connection between the accepted conditions of chronic airflow limitation or scars on both legs as contributing to the death of the veteran.

16.     That being so, the remaining question for us is whether any of the factors in the relevant SoP are raised by the circumstances of this case. There is a SoP concerning diverticular disease of the colon, No 13 of 2008, which revoked Instrument No 67 of 1994 as amended. None of the factors in those Instruments provide a possible link to service and diverticular disease through acquired infection. There was nothing before us, which raised any of the factors in the SoP, and so no reasonable hypothesis is raised. We are satisfied beyond reasonable doubt that the veteran’s death was not war-caused.

DECISION

17.     We affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member and Dr M Denovan, Member.

Signed:         ...............................[Sgd].....................................
  Elizabeth Young, Research Associate

Date/s of Hearing  23 October 2008
Date of Decision  12 November 2008
The Applicant was supported by her daughter Ms J Elson
For the Respondent                  Mr B Williams, departmental advocate