Drennan and Repatriation Commission - [2000] AATA 701

DECISION AND REASONS FOR DECISION [2000] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/464

VETERANS' APPEALS   DIVISION     )
           Re      Melva Joyce DRENNAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date16 August 2000
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Allan Roy Drennan is war-caused pursuant to s8 of the Veterans' Entitlements Act 1986 and the Applicant is entitled to a War Widow's pension with effect on and from 9 March 1997. Liberty to apply in respect of s67(3) of the Administrative Appeals Tribunal Act 1975 is reserved.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war widow pension – whether death of Veteran war-caused – no Statement of Principles – whether war service contributed to worsening of reflux nephropathy – whether war service contributed to worsening of renal disease which led to chronic renal failure and ultimately death – whether received appropriate clinical management of renal disease – renal disease undiagnosed on service – Veteran served in the tropics

Veterans' Entitlements Act 1986- ss 120(1), 120(3), 120A(4)

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

16 August 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is a review of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 1 May 1997 which determined that the death of Allan Roy Drennan ("the Veteran") was not related to his war service. That decision was affirmed by the Veterans' Review Board ("the VRB") on 5 February 1999. Melva Joyce Drennan ("the Applicant"), as the widow of the Veteran, lodged an application for review by this Tribunal on 29 March 1999. Her application for review by the VRB was lodged out of time, and therefore the earliest effective date for payment of pension is 9 March 1997, being a date not earlier than six months before her application for the VRB review.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The Applicant gave oral evidence at the hearing. Dr G M Carney, physician and nephrologist, was called by the Applicant to give telephone evidence and Dr Holmes was called to give oral evidence. A medical report from Dr Carney dated 12 November 1999 including an addendum to Dr Carney's report dated 2 December 1997 was tendered as evidence on behalf of the Applicant (exhibit A).
The Veteran was born on 21 April 1922 and he died on 2 September 1996. The cause of death was registered as (T4, p36) -
a) Chronic ambulatory peritoneal dialysis peritonotitis with fibrile (sic) neutropenia (2 days)
b) End stage renal failure (7 years)
c) Non hodgkins lymphoma (3 weeks)

The Veteran served in the Australian Army from 15 December 1941 to 29 May 1946, including service in New Guinea, and therefore his service constitutes operational service in accordance with the Veterans' Entitlements Act 1986 ("the Act"). Pursuant to ss120(1) and 120(3) of the Act, the Tribunal is required to determine that his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service.
Although the claim was lodged on 23 December 1996, after the amendment to the Act by s120A, as no Statement of Principles has been determined and no notification has been given that the Repatriation Medical Authority proposes to make a Statement of Principles in respect of chronic renal failure pursuant to s120A(4), s120A(3) does not apply. In effect, the Tribunal must determine the matter pursuant to ss120(1) and (3) without having to meet the requirements of a Statement of Principles.
The Applicant's case is that the primary cause of the Veteran's death was congenital renal disease which worsened whilst on service due to inappropriate clinical management of that condition. Subsequently this led to chronic renal failure and ultimately his death. The hypothesis put forward on behalf of the Applicant is that the Veteran had congenital renal disease which was undiagnosed and because of that condition he was vulnerable to service in the tropics. It was argued that because of the Army's failure to diagnose the Veteran's chronic renal disease he served eight months in New Guinea which caused the subsequent progression of that disease.
It was agreed between the parties that the Veteran's renal failure was the primary cause of his death, and although he suffered from non-Hodgkins lymphoma, that condition and its relationship with his death did not have a material effect. It was also agreed that the only issue to be determined by the Tribunal was whether the Veteran's renal condition was aggravated by the circumstances of his service. The fact that the Veteran's renal condition was congenital was not in dispute.
applicant's evidence
The Applicant first met the Veteran in early 1948 and they subsequently married in December 1948. When she first met him, she said her husband's health was "not particularly wonderful" in that he was unable to undertake any physically hard work due to lower back and loin problems. The Applicant's evidence was that the Veteran resisted consulting a doctor because of his back pain on the basis that it would disappear after a few days. In the early years of their marriage and until he saw Dr Carney, she said his pain was not "terribly bad"; from when they were married, she recalled that he simply lied down and rested to alleviate the pain for an hour or more. This occurred only after hard physical activities such as gardening. She recalled that he did not take pain killers at the time. She also recalled that he suffered from urinary frequency. His back pain worsened in the early 1970's when he had a "very bad attack" with "very high" blood pressure and he subsequently attended the Canberra Hospital. He started seeing Dr Carney at this time, who investigated the Veteran's kidney condition and diagnosed reflux nephropathy. Thereafter, the Veteran was prescribed medication and was required to change his diet and drink 8 glasses of water a day. In 1992 he commenced peritoneal dialysis at the Canberra Hospital, which was subsequently performed at home about 3 times a day.
The Applicant recalled the Veteran suffered from dermatitis in his hands during service that was an ongoing problem for which he needed treatment. He also suffered from gout in his foot that developed a few years after their marriage.
The Applicant understood that the Veteran served for eight months in New Guinea between March and November 1945, most of which time was spent in medical care and that he was subsequently sent home because of his skin condition.
Upon discharge from the Army the Veteran undertook shoe repairing, and in 1952 he started his own shoe business which he continued for about 30 years until he retired.
medical evidence
The Tribunal notes from the service medical records that a request was made on 15 September 1943 for consultation by a physician (T3, p13), and the following clinical record was made at that time –
Has been in the army permanently for two years. In civil life has been a boot repairer in which he sits down all day. Is able to do that occupation all right but has had his present complaint as long as he can remember. Complaint now is that he has acute and sever [sic] pains in starts in R.I.F. - goes up to hypochondrium - then to epigastrium - over to the left side - round to the hypogastrium and finally finished in the penis. At times there has been pain in passing water. Has been to R.A.Ps but has never got any relief. Medicine has had no effect…
1.Diagnosis Re-classification 3.Re-posting.

The physician reported on 29 September 1943 that blood pressure was "slightly high" at 150/84, and investigation of the genitourinary tract was recommended (T3, p13).

The Veteran was then admitted to Warwick Hospital on 6 October 1943 for 53 days, specifically for renal investigation. Micro urine examination on 7 October 1943 showed "numerous RBC and a few leucocytes and epithelial cells" (T3, p10). On 20 October 1943 a retrograde pyelogram showed no evidence of calculus or hydronephrosis (T3, p14) and X-ray showed "no evidence of calculus left renal tract. Some artefacts overlying right renal area" (T3, p15). Micro urine tests on 30 October 1943 showed 20 red blood cells per high power field and in mid to late November "occasional RBC" were recorded (T13, pp16-17). At the time of his discharge from hospital on 25 November 1943 it was stated that the Veteran did not require reclassification as all investigations were negative and there was no evidence of organic renal disease.
The Tribunal notes from a medical examination on 21 March 1946 at the time of the Veteran's discharge from the Army (T3, pp7-8; T4, pp31-32) that he suffered from dermatitis of the feet and hands with associated furunculosis during service. No reference was made to the Veteran suffering from kidney disease.
Oral evidence was given by Dr Holmes, the Veteran's local medical officer. He admitted that, when examining service documents from the Veteran's departmental file in approximately 1988, he made an entry at the end of the Veteran's "Service and Casualty Form" (T4, p33) as follows –
Note Renal infection 20/11/43
There is an 18 month history of dermatitis and he was discharged because of it. The dermatitis would certainly have become secondarily infected in that time. Streptococcal infections can cause nephritis in degree varying from severe to mild and unrecognised.

The first diagnosis of nephropathy appears in the records of the Royal Canberra Hospital Discharge Summary Sheet dated 5 August 1981 (T6, p94). It was recorded that the Veteran was admitted to hospital under Dr Goldrick, because of pain in the right loin and "8 years of polyuria polydipsia" and "24 years gout". The diagnosis on discharge from hospital was chronic renal failure, gout nephropathy, hypertension and Aldomet marrow toxicity. During that admission the Veteran was reviewed by Dr Hurley. In oral evidence given by Dr Carney, the Veteran's treating renal physician, he explained that Dr Goldrick was a general physician in practice in Canberra and Dr Hurley was a consultant pathologist. Dr Carney also advised that he did not commence treating the Veteran until about 1983.
In 1992 the Veteran was admitted to Woden Valley Hospital with a diagnosis of chronic renal failure due to reflux nephropathy (T6, p92). Haemodialysis was commenced and it was arranged that it would continue three times weekly.
On 12 August 1996, the Veteran was again admitted to hospital when non-Hodgkins lymphoma was diagnosed. At that time it was noted that the Veteran also suffered from "CRF (chronic renal failure), gout and CAPD (chronic ambulatory peritoneal dialysis) peritonitis" (T6, p40). An abdominal ultrasound on 13 August 1996 (T6, p82) showed numerous cysts in both kidneys, and a CT of the abdomen on 14 August 1996 showed that both kidneys were small and scarred with cysts. Additionally it was noted that there was a 3cm mass in the lower pole of the left kidney of soft tissue density that was not obviously cystic in origin. A biopsy taken on 16 August 1996 (T6, p85) showed "no suspicious lesion".
Dr R A G Holmes
Dr Holmes is a qualified medical practitioner who was a medical officer in the Army from August 1942 until the end of the war. In his report dated 21 May 1997 (T9, p108) Dr Holmes said -
In my opinion the possibility of aggravation by infection during war service cannot be excluded beyond any reasonable doubt. It is recorded that he had chronic dermatitis which almost invariably becomes infected. There is also record of throat infections. In the days before penicillin, rheumatic fever or nephritis were common complications of streptococcal infections. Acute nephritis is obvious. But a mild subacute nephritis may not reveal itself at the time yet it can still go on to result in chronic nephritis. For this reason I believe there are grounds for appealing against the departments decision.

In oral evidence Dr Holmes noted that the Veteran had a parallel infection secondary to his dermatitis and that folliculitis was one such infection of the hair follicles associated with dermatitis. He said treatment for folliculitis included sulphonamides to slow down germ reproduction.

Dr Holmes also noted that on 10 December 1944 the Veteran suffered from furunculosis, and that the treatment for this condition was sulphonamides. He disagreed with the opinion of Dr Carney that the Veteran would have avoided taking sulphonamides because of his renal condition. Dr Holmes said that sulphonamides were administered because that was the only treatment available at the time, notwithstanding the rare side effects, which only 1% would have suffered in any case. He recalled using penicillin for the first time in January 1944 for treating wounded soldiers, but as penicillin was not readily available he considered sulphonamides would have been used routinely. He said that in hindsight, however, sulphonamides should have been avoided because of the Veteran's renal condition.
Dr Holmes stated that in a civilian medical setting, if he was advised that the Veteran was going to Bougainville to undertake fairly strenuous activity, he would have advised to delay going until his kidneys "could be cleared" given the risk of dehydration. Indeed Dr Holmes raised the possibility of there being a shortage of water if the Veteran was in an operational area in New Guinea. However, as a doctor in the Army, Dr Holmes said it was his responsibility to "do the best to keep the maximum number of troops in the field".
In oral evidence Dr Holmes confirmed that the Veteran's dermatitis could have developed into a subacute nephritis. He also raised the probability of the Veteran suffering from inflammation in the kidney that does not show due to lack of bacteria in the urine. Dr Holmes explained that reflux nephropathy is a condition which affects people in childhood and by the age of 12 years there is usually abundant evidence of the effects in the kidneys from the reflux. He said the fact that in 1943 the Veteran's kidney tests were normal, suggested that his reflux must have been fairly minimal. Having said that, however, Dr Holmes qualified that about 50 years ago, acute nephritis was fairly common following infections, and that subacute nephritis could have developed in this case as a result of the infections the Veteran had.
Dr Holmes explained that the mechanism by which urinary tract damage can cause kidney damage is through pyelonephritis which, associated with bacteria and inflammation of the kidney, causes severe renal scarring. He noted that although the relationship between the Veteran's dermatitis and renal problems was temporal, he could have had a reaction to his infected dermatitis in 1943 which "smouldered" over a period of years, and worsened.
Dr Holmes noted that prior to enlistment the Veteran had experienced abdominal pain and urinary symptoms. Thus it appeared that his reflux commenced even before enlistment at the age of 21 years, which Dr Holmes considered was relatively late, so that the Veteran must have been in his late teens before he produced any symptoms.
Dr Holmes was referred to a request for consultation made on 16 September 1943 (T3, p13) where the RMO noted the Veteran's symptoms and that the medication he was taking at the time "had no effect". He explained that the medication prescribed at that time may have been analgesics, or Mistaposit, a treatment alkalising the urine to detect any "bugs" living in the acid medium. Dr Holmes also stated that the RMO's comments suggested the Veteran ought to have been classified "B" because the RMO must have known at the time that the Veteran was not coping with the normal duties of an infantry soldier, meaning that he was essentially unfit for service in a tropical climate. A Classification B would have meant that the Veteran would not have been sent overseas.
Dr Holmes clarified that Warwick hospital, where the Veteran spent quite some time, was a fully equipped hospital and not a camp hospital. Noting that by November 1943, the Veteran had very "occasional RBC only" (T3, p10D), Dr Holmes considered that the Veteran should have been reviewed after discharge from Warwick hospital, because of the lack of explanation for the blood in his urine. However, he also considered that there were no further investigations that could have been performed at the time.
Dr Holmes considered that the Veteran's non-Hodgkins lymphoma made a significant contribution to his death but it was not the main cause. He said that the Veteran probably would have died if he did not have non-Hodgkins lymphoma.
Dr G M Carney
Dr G M Carney is a renal physician who first treated the Veteran in 1983 and managed his chronic renal failure through to dialysis. He prepared a medical report dated 2 December 1997 (T11, p112). He opined that the Veteran's renal disease was evident prior to his army service. During his Army service, Dr Carney noted that the Veteran attended several doctors "with symptoms and signs consistent with the evolution of an interstitial nephritis, due to reflux nephropathy", and that many tests were performed with respect to renal lesions. However, as the Army never appreciated or understood that the Veteran had a kidney disease, it would not have taken the necessary precautions such as ensuring that he was only placed in locations that allowed proper hydration maintenance and surveillance of his medications, so as to offset any nephrotoxic medications he was taking at the time.
Dr Carney considered that the Veteran should have been diagnosed with kidney disease considering the results of the retrograde pyelogram in 1943. However he said it was not taken any further because, although serious, it was probably not going to affect his ability to be an effective soldier. Dr Carney said that proper treatment would have ensured maintenance of hydration. As the Veteran made no mention of suffering from a kidney disease at the time of his discharge, obviously he was not advised about the importance of maintenance of hydration.
Dr Carney conceded both in his report and in oral evidence that the Veteran's Army service was not the major cause for the deterioration of his pre-existing illness. He admitted that the Veteran's condition was incurable. He said however, that the failure of the Army to diagnose the Veteran's pre-existing condition during his service resulted in a lack of treatment to minimise the progression of his renal disease. Such treatment would have involved advising avoidance of sulphonamides, aspirin and dehydration and being alert to the development of symptoms so that they could be dealt with promptly. Other certain precautions including urine surveillance for infection and prompt intervention if urine symptomatology developed, would have been taken had the disease been recognised and diagnosed. Overall he considered it was " perfectly reasonable" to assume that the Veteran's war service was a contributing factor in the worsening of his renal disease.
Dr Carney was asked to address what the course of the Veteran's disease would have been if precautions such as those that he had suggested had been taken. He noted the possibility that the Veteran's disease would have progressed regardless of action or inaction, but did not consider this to be a plausible option. The other possibility was that applying good renal principles, the Veteran may have reached end stage kidney failure but at the end of his natural life. Dr Carney considered it "perfectly arguable" that if one applies appropriate renal principles to a person with chronic illness one can then "push out" the natural history of that disease so that although that person may develop chronic renal failure, the condition does not reach the stage where renal replacement therapy is required. Good medical practice at an earlier stage would have given the Veteran enough renal function to sustain life in a normal sense without requiring dialysis.

Dr Carney considered that in October 1943 the state of medical knowledge was such that (exhibit A) –
Army Medical Officers would have known that symptoms of loin pain, frequency and scalding in the passage of urine, and blood in the urine on testing defined a renal disease.
Army Medical Officers would have known that renal diseases, which were associated with pain and lower urinary tract symptoms, frequently fell into the category "pyelonephritis" or the other term used in those days, pyelitis.
…
Army Medical Officers would have known that vague complaints, such as flank, abdominal or loin pain with tenderness, when coupled with a clinical sign such as haematuria, could denote serious renal disease.
The state of knowledge in October 1943 would have allowed an Army Medical Officer to appreciate that there is a much greater physiological derangement in tubulo-interstitial disease, than the degree of kidney failure or kidney signs may suggest when standard clinical tests were used.
The availability of tests which would allow renal imaging was limited in 1943. Nonetheless, a medical practitioner would have appreciated the limitation of those tests in defining renal structure. The concept, that renal scarring may occur at one stage, and slowly progress in time, was appreciated in 1943.
… Renal imaging in 1943 would only show gross or late stage abnormalities. Early disease could be overlooked. Medical officers should have known this. (exhibit A)
In his report Dr Carney also clarified what was not known to medical officers in October 1943 with respect to renal disease, viz. -
The broad concept of reflux nephropathy, being a congenital illness, which would lead to scarring of the kidneys in the first two to five years of life, which would slowly progress and worsen, particularly if there were adverse environmental factors, was not a concept available to a Medical Officer in October 1943. Structural disease of the kidney was recognised, but its subdivisions were not. Limited tests were available in 1943.
Today those tests are so much more sophisticated, and patients who may present with symptoms and signs, such as Mr Drennan did,…would be exposed to high resolution IVP with tomography, DMSA kidney scanning, perhaps CT of the kidneys, and sophisticated renal function tests to define glomerular and tubular function. Many of these tests were not available, at least in any sophisticated form, in 1943.
Despite what was unknown, Dr Carney opined that a reasonably competent medical practitioner in 1943 would have made the diagnosis of chronic pyelonephritis, with the symptoms and signs presented by the Veteran and the imaging available at the time. Notwithstanding that modern medicine would now approach the condition differently due to advancement in renal imaging and renal function testing, a reasonably competent doctor should have suspected chronic pyelonephritis. Indeed that is the reason why cystoscopy and retrograde pyelography were ordered for the Veteran in 1943.
Dr Carney highlighted that the problem in this case occurred because the relevant tests taken failed to indicate a positive diagnosis. However, he did not see that as a barrier to diagnosis because a competent medical practitioner at that time would have concluded that the Veteran suffered chronic pyelonephritis but had not developed severe renal scarring. Overall, Dr Carney opined that the Veteran suffered from chronic pyelonephritis, despite normal tests in 1943, which he considered occurred because the quality of X-rays would not have been as good as those of today. He believed that the tests probably did not show anything too abnormal, but through the passage of time, the size of the Veteran's kidneys got smaller. Had the proper diagnosis been made in 1943, the Veteran would then have been reclassified so as not to be at risk.
Dr Carney opined that the prognosis for the majority of people suffering from reflux nephropathy was quite good. The majority would have experienced high blood pressure at some later stage in life and possibly suffered some type of urinary infection. Only a proportion of those would have developed chronic renal disease later, associated with gout and hypertension, which would have lead to death or dialysis.
Dr Carney was referred to a discharge summary from Royal Canberra Hospital (T6, p94) which noted diagnosis on discharge to include "chronic renal failure, gout nephropathy, hypertension and aldomet marrow toxicity", and was asked why the Veteran was not diagnosed with reflux nephropathy. Dr Carney said the diagnosis of "gout nephropathy" was incorrect. In his opinion there was no substantial medical history to support that diagnosis notwithstanding the possibility that the Veteran did have gout.
Dr Carney considered it was common that a period of 30 years transpired from the time of the Veteran's Army service to the time of his symptomatic diagnosis. One develops a degree of nocturity, frequency and adaptability to the condition at puberty. A lag period of 30 years did not negative the diagnosis.
Putting aside the legitimacy of the investigations conducted in 1943, Dr Carney opined that given the fact that it was likely the Veteran suffered from congenital reflux nephropathy and that he spent eight months in the tropics on service, the progress of his condition would have been negatively affected by his service in the tropics. He considered that it would have increased the progression of the Veteran's disease, notwithstanding that he suffered from non-Hodgkins lymphoma prior to his death. The Veteran's Army service would have influenced the natural history of his reflux nephropathy to a "significant" degree.
submissions
It was submitted for the Respondent that on the evidence it was "extremely hypothetical" to conclude that the course of the Veteran's congenital disease could have changed with treatment. The Veteran's renal problem was first identified and reported in the 1970's when he was diagnosed with hypertension, and then in 1981 gout nephropathy was diagnosed. Reflux nephropathy was not diagnosed until some time later. It was submitted that the Veteran was treated in a fully equipped hospital during service, and during that time he would have spoken with numerous people who would have advised him about the investigations that were undertaken. It was submitted that the treatment he received during his service was very extensive and as good as could have been provided at the time.
In relation to treatment using sulphonamides, the Respondent noted Dr Holmes' evidence that the Veteran probably would have been treated with that medication for his dermatitis condition as there was little else that could have been given at the time. It would have been used irrespective of any knowledge of a kidney complaint. In relation to whether the Veteran was exposed to dehydration, it was submitted that Dr Carney's assumption that the Veteran suffered from dehydration as a result of spending time in the tropics was speculative at best.
It was submitted that a reasonable hypothesis suggesting material contribution or aggravation of a pre-existing condition was not raised on the evidence before the Tribunal.
consideration of evidence and findings of fact
The Tribunal finds that the primary cause of the Veteran's death was chronic renal failure, notwithstanding that he also suffered from non-Hodgkins lymphoma shortly before his death. On the medical evidence the Tribunal is reasonably satisfied that reflux nephropathy was the cause of the Veteran's renal failure. The Veteran suffered from a renal condition that was probably congenital, that existed prior to his Army service. On the basis of the service medical records the Tribunal finds that the Veteran suffered from symptoms relating to his renal condition prior to and during his Army service.
The primary hypothesis linking the Veteran's death to the circumstances of service is that, on the evidence of Dr Carney, the failure to diagnose the Veteran's renal condition whilst on service caused him to be sent to New Guinea without knowledge of the precautions he should take in relation to hydration, and that his tropical service caused dehydration which contributed to the progress of his condition and ultimately to his death.
The Tribunal accepts the opinions of Dr Carney and Dr Holmes and finds both to be impressive and credible witnesses. The Tribunal finds that during service, the Veteran underwent several investigations in relation to his kidneys. Indeed he was hospitalised for 53 days at Warwick hospital, at which time both cystoscopy and retrograde pyelogram examination rendered negative results. Furthermore the Veteran's urinary tests, whilst showing red blood cells, did not cause any diagnosis of a kidney disorder to be made.
The Tribunal finds that the failure to diagnose was not unreasonable. The Tribunal notes the opinion of Dr Carney, that a reasonably competent medical practitioner at the time would have realised that a normal cystoscopy and retrograde pyelogram would not necessarily have negatived the diagnosis of chronic pyelonephritis. However, the Tribunal also notes that Dr Carney agreed that the concept of reflux nephropathy was not available to a medical practitioner in 1943 and that limited tests were available then. The Tribunal understands the reason why there was no radiological evidence in 1943 was probably because of the poor quality of X-rays at the time. In the circumstances, all the tests that could have been done were done. Thus failure to diagnose did not amount to inappropriate clinical management of his condition.
However, the failure of the Army to perceive a renal problem that could not be diagnosed and therefore to preclude the Veteran from tropical service was a failure in their duty of care. On the opinion of Dr Carney which the Tribunal accepts, there were sufficient signs and symptoms at that time to have caused a medical reclassification to Class B. A Class B classification would have precluded the Veteran from service in the tropics and caused the Army to keep his condition under medical review. The Tribunal finds that that should have been done despite the lack of medical knowledge available at the time regarding reflux nephropathy and the difficulty in coming to a specific diagnosis of his condition. On the medical evidence the Tribunal finds that despite the negative investigations in 1943, the Veteran should have been reclassified and precluded from duty in the tropics.
As to the issue of contribution, the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 said (at 323) –
All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
…
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established however, it matters not that the contribution be large or small.

Dr Carney's evidence which the Tribunal accepts, is that the Veteran's service in New Guinea would have made a "significant" contribution to the progress of his disease. Accordingly the Tribunal finds that the Veteran's service in New Guinea would have contributed materially to the progress of his disease.

In addition to the hypothesis already raised, on the evidence of Dr Holmes the Veteran could have developed sub-acute nephritis as a result of any infection associated with his dermatitis. The Tribunal notes that the Veteran's dermatitis was associated with furnuculosis, and on the evidence of Dr Holmes, the Tribunal finds that this would have been treated with sulphonamides, that being the only drug treatment available at the time. On the evidence of Dr Carney, the Tribunal finds that treatment with sulphonamides would have had adverse effects on the progress of the Veteran's renal condition. In the same way as the first hypothesis raised, the Tribunal finds that this is a reasonable hypothesis, which has not been dispelled beyond reasonable doubt.
The Tribunal finds that pursuant to s120(3) two hypotheses have been raised on behalf of the Applicant, both of which the Tribunal finds to be reasonable. Moreover, on the evidence, pursuant to s120(1) the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused.
The decision under review is therefore set aside, and in substitution therefor the Tribunal decides that the Veteran's death was war caused and that the Applicant is entitled to payment of a War Widow's pension on and from 9 March 1997.
After the conclusion of the hearing it was submitted for the Applicant that if the Tribunal makes a decision in favour of the Applicant, an opportunity should be provided by the Tribunal to make submissions with respect to the Respondent's liability to pay conduct money and witness expenses pursuant to s67 of the AAT Act and the Tribunal's General Practice Direction. The Tribunal notes that Dr Holmes and Dr Carney were summonsed to attend the Tribunal to give evidence, at the request of the Applicant. Presumably the Applicant is seeking to make submissions in respect of s67(3) of the AAT Act. Liberty to apply is reserved.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 December 1999
Date of Decision  16 August 2000
Counsel for the Applicant        A.Hill
Solicitor for the Applicant         S.Lurie, Dibbs Crowther & Osborne
Counsel for the Respondent    N/A
Solicitor for the Respondent    P.Godwin, Dept. of Veterans' Affairs