Davy and Repatriation Commission

[2002] AATA 1143

DECISION AND REASONS FOR DECISION [2002] AATA 1143

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1222

VETERANS' APPEALS DIVISION          )          
           Re      John Humphery Davy     
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Mr M D Allen, Senior Member      

Date6 November 2002

PlaceSydney

Decision      The decision under review is affirmed.          
  (Sgd)          M D Allen
   ..............................................
   Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for Ischaemic Heart Disease - Although veteran had undergone cardiovascular surgery Respondent claimed that Ischaemic Heart Disease no longer suffered by veteran at time of application for pension - Opinion of cardiologist preferred to that of General Practitioner - No disease existed.

Veterans' Entitlements Act 1986 – s5C, s6C(2), s7(1)(a), ss120(1) and (3), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

Mr M D Allen, Senior Member      

1. By application made the 16th day of August 2001 the Veteran John Humphery Davy made application to the Tribunal for review of a decision by a Veterans' Review Board ("VRB") on the 7 August 2001 rejecting his claim for Ischaemic Heart Disease recognised as war-caused disease.

2. The Veteran died on the 8 July 2002. This matter proceeded with the late Veterans' wife being substituted as the claimant pursuant to section 126 of the Veterans' Entitlements Act 1986 ("VEA").

3. Although the Veterans' service was with the New Zealand army he is eligible for benefits under the VEA by a combination of sections 6C(2) and 7(1)(a) and the definition of veteran as it occurs in s5C of the VEA. In fact the Veteran's status as a veteran entitled to benefits under the Australian law was recognised by the Respondent many years previously pursuant to section 107D of the Repatriation Act 1920 (as amended) and the Respondent did not seek to challenge that determination in these proceedings.

4. Similarly it was not in dispute that the Veteran had operational service in Malaysia with the New Zealand Special Air Services Regiment in the years 1955 to 1957.

5. As the late Veteran had operational service then pursuant to s120(1) VEA the Tribunal must grant the claim unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will however be deemed to be so satisfied if, after a consideration of all the material before it the said material does not raise a reasonable hypothesis connecting the claimed disease with the circumstances of the particular service rendered by the claimant.

6. Section 120A VEA than goes on to provide that an hypothesis will not be reasonable unless it conforms with a so called Statement of Principles that upholds the said hypothesis.

7. The relationship between the provisions of s120A and ss120(1) and (3) VEA was discussed by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 91. I see no reason to recapitulate those well-known passages here.

8. In this matter it was agreed by both parties that the applicable Statement of Principles was Instrument No. 38 of 1999 entitled Ischaemic Heart Disease.

9. This matter in reality raised two questions namely:

   (1)Whether the Applicant did at the time he claimed pension for Ischaemic Heart Disease namely on the 2 November 2000 suffer from Ischaemic Heart Disease, and

   (2)Whether the recommencement of his smoking habit in 1980 was attributable to service.

10. Instrument No. 38 of 1999 defines Ischaemic Heart Disease as:

    "Ischaemic Heart Disease means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:

    (i)        myocardial infarction (old or new); or

    (ii)       angina; or

    (iii)      arrhythmia with ECG evidence of myocardial ischaemia; or

    (iv)      cardiac failure,

    (i)        myocard"

and the Factors which raise a reasonable hypothesis include subparagraph 5(e) which reads:

"where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

(ii) smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or

(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation;"

1. The smoking history obtained from the late Veteran has been contradictory.  At page 7 of its decision the VRB set out various notations in Department of Veterans' Affairs files as to the Applicant's smoking history.

2. On the material before me which included the transcript of the Applicant's evidence to the VRB (Exhibit R2) I find that the Applicant either commenced to smoke or increased his smoking habit whilst on operational service.  A significant factor in this was the free issue of cigarettes to servicemen by the Nuffield Foundation.

3. There is also evidence that the Applicant had ceased smoking in 1975. Document T2 of the documents provided to the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 at pages 2I and 2J note that the Applicant in January 1975 and April 1975 told Medical Practitioners that he was a non-smoker. I see no reason to doubt these records and the fact the Applicant was at that time a non smoker is corroborated by his own statement of 25 February 2002 made for the purposes of these proceedings (Exhibit R10).

4. The late Veteran also told the VRB that at the time of his then wife's death in 1980 he had not been smoking for "a long time".

5. The late Veteran was diagnosed with Ischaemic Heart Disease in 1996 and underwent coronary artery surgery in March 1997.  In Repatriation Commission v Cornelius [2002] FCA 750 at paragraph 26 the following statement from Re Robertson and Repatriation Commission (unreported AAT Decision No. 12666) was approved:

   "There is a clinical onset of a disease either when the 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 was made on investigation which is indicative to a doctor of the disease being present."

On this basis therefore I accept that the clinical onset of the Applicant's Ischaemic Heart Disease was between October and December 1996 as opined by Professor O'Rourke in his report of 22 July 2002 (Exhibit R9).

1. Professor O'Rourke is firmly of the view that the Applicant was not suffering from Ischaemic Heart Disease at the time he made his claim.  In his report of 22 July 2002 Professor O'Rourke states:

   "From the notes obtained previously it appears that Mr. Davy has had a very good result from coronary artery bypass surgery with a left internal mammary graft and that he has no evidence of ischaemia on exertion at this time."

1. Professor O'Rourke examined the late Veteran on 15 March 2002.  In that report it is clear that Professor O'Rourke had difficulty in getting a coherent statement from the Veteran but Professor O'Rourke was able to report from the records made available to him:

   "He appears to have had a negative stress test by Dr. Waite in 1999 while Dr. Ross Walker who saw him one or two years back saw no need for further stress testing or any more invasive assessment of his coronary problems."

1. More important is Professor O'Rourke's report of 22 April 2002 (Exhibit R7).  In that report Professor O'Rourke states:

   "I have examined the document file provided by Dr. D. Ellis.  This refers to multiple consultations and of recurrent chest pain associated with stress together with depression and multiple other complaints.  There is nothing in Dr. Ellis' note to suggest any evidence of definite coronary disease following bypass surgery.  There was a referral to Dr. Jon Waites and a report from Dr. Waites dated 11th May 2000.  Dr. Waites appeared to imply that he thought pains were not due to any coronary problem but to "his rather stressful lifestyle".  Dr. Waites' letter referred to a stress test being arranged but there is no report in the document file.
   Dr. Ellis referred to a report from Dr. Ross Walker, but the report is not in the document file.  Dr. Ellis did summarise that Dr. Walker believed the pain was noncardiac.  This consultation was on the 19th June 2001 and there was a further consultation on the 31st October 2001 where Dr. Ellis again discussed Dr. Walker's report with Mr. Davy.  Mr. Davy was worried about the impression of no cardiac disease in the report.  Dr. Ellis reassured Mr. Davy that all symptoms had been controlled by successful coronary artery bypass graft surgery (and presumably that while ischaemic heart disease was the cause of his earlier symptoms, ischaemic heart disease was not responsible for continuing symptoms).  Dr. Ellis continued antihypertensive therapy and therapy for hypercholesterolemia.  Dr. Ellis' notes refer to Mr. Davy's business activities and his overseas trips to Laos and Cambodia.
   This document file from Dr. Ellis confirms the views stated in my earlier letter that Mr. Davy has had an excellent result from his coronary artery surgery and that present problems are regarded as noncardiac by his attending cardiologists, Dr. Waite and Dr. Ross Walker."

1. Mr Sherlock, the advocate who appeared for the claimant referred to the clinical notes of Dr Ellis, the late Veteran's General Practitioner.  I note from his letterhead that Dr Ellis has the qualifications of a MBBS and a Diploma from the Royal Australian College of Obstetricians and Gynaecologists but no specialist qualifications in cardiology.

2. Whereas the clinical notes of Dr Ellis clearly refer to the Veteran suffering from "angina" both before and after his application to the Respondent for pension for Ischaemic Heart Disease and Instrument No. 38 of 1999 clearly classes Angina as a symptom of Ischaemic Heart Disease, I am not persuaded that the Veteran did suffer from "angina" strictly so called.

3. In a report dated 11 May 2000 to Dr Ellis, Dr Waites cardiologist states:

   "I reviewed your 64 year old patient today.  He had single vessel bypass surgery performed three years ago.  He has been under considerable stress and anxiety recently and as a consequence, feels he has had a recurrence of his angina...
   At the end of the day I suspect a number of his symptoms are related to his rather stressful lifestyle."

1. Professor O'Rourke has referred to this report cited above and unfortunately the later reports which were sought by Dr Ellis from Dr Waites and Dr Walker were not included in the material made available by Dr Ellis.

2. I am more persuaded by the reports of Professor O'Rourke who is pre-eminent in the field of cardiovascular medicine.  I acknowledge that Dr Ellis has continually referred to "Angina" in his clinical notes but that this was true angina has been doubted by cardiologist Dr Waites and Professor O'Rourke is firm in his opinion that Ischaemic Heart Disease did not exist at the time of the application to the Respondent by the late Veteran or at the time he saw the Veteran in March 2002.

3. Therefore I am affirmatively satisfied that the late Veteran did not at any relevant time suffer from Ischaemic Heart Disease.  The decision under review is therefore affirmed.

   I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen,
   Senior Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  8 October 2002
   Date of Decision  6 November 2002
   Advocate for the Applicant            Mr R Sherlock, Legal Aid Commission

   Advocate for the Respondent       Mr S Modder, Department of Veterans' Affairs