Dennis and Repatriation Commission
[2000] AATA 541
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 541
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q98/733
VETERANS' APPEALS DIVISION )
Re CYMBELINE THELMA DENNIS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member Captain ET Keane, Member
Date3 July 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS AFFAIRS – widow's pension – ischaemic heart disease – cardiomyopathy – diabetes mellitis – obesity – reasonable hypothesis.
Veterans' Entitlements Act 1986 ss 120, 120A
Repatriation Commission v Keeley (unreported FCA 532, 28 April 2000)
REASONS FOR DECISION
3 July 2000 Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member Captain ET Keane, Member
This is a review of a decision of the Repatriation Commission dated 6 November 1996 which determined that the death of the veteran, Henry Dennis, was not causally related to service. This decision was affirmed by the Veterans' Review Board on 23 June 1998.
The applicant is the widow of the late veteran, Henry Dennis, who died on 27 October 1985 at the age of 72 years. The Death Certificate had stated the cause of death to have been congestive cardiomyopathy with diabetes as a contributing factor. On the basis of additional information that had been provided by Dr Golden subsequently, it was not disputed that the veteran had sustained a myocardial infarct in 1982 and that his subsequent death had been due to congestive cardiac failure as a result of underlying ischaemic heart disease.
The records indicate that the late veteran had undertaken operational service from 18 March 1943 to 16 January 1946 in World War II. As such, the standard of proof required to be met by the applicant is that of a reasonable hypothesis. The applicant had lodged her claim for acceptance of the death of the veteran as being due to war service on 18 July 1996.
The application for review came before the Tribunal on 24 May 2000. The applicant was represented by her Advocate, Mr J Wall of the Brisbane Legacy and the respondent was represented by Mr R Loftus, Departmental Advocate.
The evidence before the Tribunal comprised the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" Documents) and copies of photographs of the late veteran were also provided.
At the commencement of the hearing Mr Wall submitted that the veteran's service had contributed to his obesity which had resulted in the subsequent development of diabetes leading to the cardiomyopathy which had caused his death.
The documentation revealed that the veteran had weighed 203 lbs at the time of enlistment in March 1943. He was at the time noted to be 55 lbs overweight but was considered to be well developed physically and was accepted for service. On discharge in January 1946 he weighed 206 lbs. His blood pressure at the time of discharge was 135/70.
Evidence was provided to indicate that the veteran had smoked during his time in the Service and his widow had recorded that he had told her that he had increased his smoking while waiting to go on flights but he had ceased smoking completely in 1949.
The veteran's medical history subsequent to discharge recorded hepatitis in 1950, cystitis in 1970, a mild cerebral vascular accident in 1977 and a myocardial infarct in 1982. Subsequent to the myocardial infarct, and as a result of that incident and associated ischaemic heart disease, he had developed congestive cardiac failure which required continuing treatment until his death in 1985. Diabetes mellitis had been first noted in 1977.
The relevant legislative provisions of the Veterans' Entitlements Act 1986 ("the Act"), as they apply in this matter where operational service has been rendered, are 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 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.
….120(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."
Section 120A of the Act, to which reference is made in the notes to subsections 120(1) and 120(3), applies to claims made on or after 1 June 1994. Subsection 120A(3) provides as follows:
"120A(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);
that upholds the hypothesis."
The relevant Statements of Principles in relation to this claim are as follows:
Statement of Principles No. 47 of 1996 concerning Diabetes Mellitis
Statement of Principles No. 140 of 1996 concerning Ischaemic Heart Disease
The Statement of Principles concerning cardiomyopathy excludes ischaemic heart disease from the definition and in any case does not include any factor relevant to this application which is not already covered in the Statement of Principles for ischaemic heart disease.
In relation to ischaemic heart disease, the only relevant factors to consider are his smoking history, the diabetes mellitis and the obesity. For any of these factors to raise a reasonable hypothesis such a factor would have to be related to relevant service.
In relation to the smoking history, the Statement of Principles requires that the clinical onset of ischaemic heart disease must have occurred within 15 years of smoking cessation. As the veteran had ceased smoking 36 years prior to his death, smoking is not a relevant factor here.
For obesity to be accepted as a factor in ischaemic heart disease, the Statement of Principles requires that there must have been a significant weight gain of the order of a 20% increase in baseline weight and in association with a BMI of 30 or greater. In the case of the applicant, the weight had increased by less than 1.5% during his service and therefore obesity could not be accepted as a factor in the causation of ischaemic heart disease.
The only remaining aspect to consider is whether the diabetes mellitis was a factor in the development of ischaemic heart disease as far as the veteran was concerned. In the Statement of Principles No. 47 of 1996, which was current at the time of the Repatriation Commission decision of 6 November 1996, the only relevant factor for consideration is Factor 5(b) which is in the following terms.
"(b)in relation to type 2 diabetes mellitis, being obese for a period of at least ten years before the clinical onset of diabetes mellitis."
In accordance with paragraph 4 of that Statement of Principles, the above Factor 5(b) must be related to relevant service.
In the case of the applicant, he was already obese at the time of his entry examination in 1943 with his weight being then recorded as 203 lbs (BMI 30.9). At the medical examination prior to discharge in 1946 his weight was recorded as 206 lbs (BMI 31.3). This variation in weight recorded on different scales and with different clothing three years apart could not be regarded as significant. The Tribunal therefore finds no link between the service of the veteran and the onset of diabetes mellitis.
For all the above reasons it follows that a reasonable hypothesis has not been established to connect the death of the veteran with his relevant service.
The Tribunal therefor affirms the decision under review.
The recent decision of the Full Federal Court decision in Repatriation Commission v Keeley (unreported FCA 532, 28 April 2000) provides that the Statement of Principles in force at the time of the initial decision is the one to be applied. Whilst that decision is currently on appeal to the High Court, the Administrative Appeals Tribunal is bound to apply the law at the date of the hearing, and has done so. However, even if the current Statements of Principles were applied to this case, there are no factors included therein which would alter the determination of the Tribunal.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Dr KP Kennedy, Member and Captain ET Keane, Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 24.5.00
Date of Decision 3.7.00
Rep. for the Applicant Mr J Wall, Brisbane Legacy
Counsel for the Respondent Mr R Loftus, Departmental Advocate
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