Eileen Pye and Repatriation Commission

[2015] AATA 201

[2015] AATA 201  

Division	Veterans' Appeals Division
File Number(s)	2013/6752
Re	Eileen Pye
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	31 March 2015
Place	Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Eileen Pye is entitled to a widow’s pension. The date of effect of this decision is 12 March 2012.  

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

Dr P McDermott RFD, Senior Member

CATCHWORDS

War widow's pension – whether death war-caused – where no operational service – whether alcohol and tobacco consumption related to service – stress – acute renal failure – decision set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 13

Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013
cl 5-6, 9

Statement of Principles concerning Hypertension No. 64 of 2013 cl 3, 6

CASES

Collins v Repatriation Commission (2009) 177 FCR 280

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

31 March 2015

INTRODUCTION

1. Mrs Eileen Pye (“the applicant”) is the widow of the late Mr William Pye (“the veteran”) who served in World War Two. The applicant has made a claim for a war widow’s pension. I have to determine whether the death of the veteran was war-caused.

2. The parties accept that if the applicant succeeds in this application the date of effect of any decision to grant her widows pension should be 12 March 2012.

   PRIOR DECISIONS

3. On 20 July 2011 the applicant lodged her claim for a war widow’s pension. On 12 September 2011 a delegate of the Repatriation Commission (“the respondent”) rejected her claim. On 5 September 2013 that decision was affirmed by the Veterans’ Review Board (the VRB). The applicant now seeks review of that decision by this Tribunal.

   SERVICE

4. The veteran served in the Royal Australian Air Force (“the RAAF”) from 14 August 1943 until 11 February 1946.

   LEGISLATION

5. Under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) the Commonwealth is liable to pay a pension to a dependant of a veteran whose death was “war-caused”.[1] The Act sets out the circumstances in which the death of a veteran shall be taken to be war-caused.[2]

   [1] Veterans’ Entitlements Act 1986 (Cth) s 13(1).

   [2] Ibid s 8.

6. The service of the veteran is eligible war service under the Act.[3] As the veteran did not perform any operational service under the Act, s 120(4) requires that the Commission should decide this matter to its reasonable satisfaction.

   [3] Ibid s 7.

7. Section 120B(3) of the Act provides that the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

   (a)the material before the Commission raises a connection between the injury, disease or death of the person disease and some particular service rendered by the person, and;

   (b)there is in force a Statement of Principles that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

8. The applicant in her statement of facts and contentions dated 27 June 2014 relies upon the SoP concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 and the SoP concerning Hypertension No. 64 of 2013, each of which is still in force.

   DEATH OF VETERAN

9. I am required to determine the medical cause of the veteran’s death. While the expression “kind of death” is often used to refer to the medical cause or causes of death of a veteran,[4] the expression is not to be found in s 120B(3) of the Act. The death certificate by Dr Grimes, oncologist, records that the veteran died on 28 May 2011 when he was 85 years of age. The certified causes of death were (a) acute renal failure and (b) metastatic colon cancer. On 27 May 2011 the day prior to the death of the veteran Dr Grimes made the following notes on the final admission of the veteran: “85 [year old] advanced colon cancer, liver [secondaries]. Palliative care. Unable to manage at home. Admitted for symptom control.”

   [4] Repatriation Commission v Hancock [2003] FCA 711 [8]-[9].

10. There was no issue that one cause of death of the veteran was metastic colon cancer. There can, of course, be more than one cause of death of a person.[5] The applicant contends that another cause of death of the veteran is chronic kidney disease as this was causally relevant to the acute renal impairment which also caused the death of the veteran. There was a difference of opinion between the renal specialists who gave evidence about whether the chronic kidney disease of the veteran played a real role in the pathological changes leading to acute renal failure.

    [5] Ibid.

11. Dr Bofinger, who was called by the applicant to give evidence, was of the opinion that the chronic kidney disease did play a real role in the pathological changes leading to the acute renal failure. Dr Bofinger remarked that chronic kidney disease is a recognised risk factor for acute renal impairment and that people who have pre-existing or impaired kidney function are at greater risk of having a worsening of their kidney function if subjected to insults in the future and that acute renal failure is where the kidney function declines quickly.

12. Dr Bofinger in explaining the relevance of chronic kidney disease to acute renal impairment referred to the analogy of a rope being subjected to a weight; if the rope is frayed then it is more likely that the rope is going to snap when it has to support that weight. Dr Bofinger remarked that “in a similar way, chronic kidney disease reduces the kidney’s reserve and also the kidneys’ ability to cope with further insults or further pressures that might occur”. Dr Bofinger thought that the length of time that the life of the veteran was shortened as a result of the chronic kidney disease is difficult to quantify but a few days to a week would be a reasonable estimate considering the circumstances.

13. Dr George who was called to give evidence by the respondent was of the view that while the acute renal failure was the event which terminated the life of the veteran, it was probably caused through the indirect mechanism related to hypotension caused by metastatic colon cancer.

14. In cross-examination Dr George was asked whether the condition of chronic kidney disease did play a role in the pathological changes leading to the death of the veteran. Dr George replied that he did not consider that the acute renal failure played a substantial role. Dr George in explaining his answer referred to the analogy of a person descending a building which is 100 stories high. Dr George chose the number 100 because the estimated glomerular filtration rate (eGFR) of a normal person is 100 (ml a minute). Dr George stated that if the veteran’s eGFR had been 100ml a minute when he entered his agonal phase then it would have taken a little longer to get to the ground floor then if his eGFR was 70 ml a minute. Dr George did not consider that the existence of the underlying renal impairment would have made a substantial difference to the overall outcome. Dr George thought that the chronic kidney disease advanced the kidney failure by a couple of days.

15. I find that metastatic colon cancer is a cause of the death of the veteran. While there is no issue between the parties that metastatic colon cancer is a cause of the veteran’s death, I make this finding on the basis of the death certificate which certifies that the condition is a cause of death as well as the hospital notes of Dr Grimes which indicate that the veteran had this condition.

16. I also accept the submission of the applicant (and so find) that renal kidney disease is another cause of the veteran’s death. I make this finding on the basis of the evidence of both renal physicians. In particular, while Dr George was not of the opinion that the underlying renal impairment would have made a substantial difference to the overall outcome, he did not say that the chronic kidney disease did not play any role. Dr Bofinger was of the opinion that the chronic kidney disease did play a real role in the pathological changes leading to the acute renal failure. Dr Bofinger was not challenged on his conclusion in this regard.

17. The decision of the Full Court of the Federal Court of Australia in Collins v Repatriation Commission[6] was cited during final submissions. In Collins, Mansfield and Stone JJ observed that in relation to a particular disease the Tribunal did not make a finding of fact about whether that disease caused death.[7]  The evidence before me in the report of Dr George is that acute renal failure was the event that terminated the life of the veteran. The decision in Collins can be distinguished from the circumstances of this case where there is unchallenged evidence from Dr Bofinger that the chronic kidney disease did play a real role in the pathological changes leading to the acute renal failure. Dr George in his report did not exclude that chronic kidney disease could have made manifestations of the acute renal failure appear more quickly than otherwise would have been the case. In Collins, Edmonds J cited the observations of the primary judge that “if death is hastened because of the accelerated progress of a disease, being acceleration of a war-caused condition, the death was attributable to war service”.[8]

    [6] (2009) 177 FCR 280.

    [7] Ibid 291.

    [8] Ibid 298.

18. During the examination-in-chief of Dr George the respondent asked whether the veteran had a constitutional condition. The report of Dr George that had been admitted into evidence did not advert to the veteran having such a condition and the applicant would not have had the opportunity to consult with her expert witness on this issue who, because of the interposition of witnesses, had already been excused. In the circumstances I ruled that the applicant would be at a disadvantage in cross-examining Dr George and that if the respondent wished to introduce such new evidence this would necessitate an adjournment which would involve the applicant in more expense. There was no submission by the applicant that the veteran had a constitutional condition that caused chronic kidney disease. Dr George mentioned that in 1943 the veteran had a blood pressure reading which might not have then been looked upon as abnormally high but would now be classified as hypertension. However Dr George quite properly mentioned that there are no details of how that reading was taken. Dr George mentioned that the veteran has readings from 1946 which are just within the normal range. Dr George remarked that there were two readings in 1965 which were above the normal range.

    CONSIDERATION

19. The applicant contends that malignant cancer of the colon was war-caused and relies upon factor 6(c) of the relevant SoP which refers to drinking at least 500 kilograms of alcohol within any 25 year period, before the clinical onset of malignant neoplasm of the colorectum.[9] The evidence before the Tribunal was that the veteran satisfied this level of consumption by being a very heavy drinker. The evidence from the applicant and his daughters (Ms Gannon and Ms Kopp) as well as Mr Gannon confirms that the veteran was a very heavy drinker. In particular, Ms Kopp remarked that the veteran and his wife would usually have a bottle of wine with dinner and how it was the veteran’s habit to have a scotch or brandy after dinner.  The respondent in the statement of facts, issues and contentions dated 5 September 2014 accepts that the veteran drank alcohol at levels that may well have met the requirement for the consumption of 500 kg of alcohol within any 25 year period before the clinical onset of malignant neoplasm of the colorectum.[10] In final submissions it was accepted that the level of alcohol consumption which is prescribed in factor 6(c) equates to about five and a half drinks per day. The respondent has quite properly conceded that the veteran met that level of consumption within any 25 year period before the clinical onset of malignant neoplasm of the colorectum; the clinical onset of the condition was accepted as being in 2009.

    [9] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 cl 6(c).

    [10] At paragraph 5.2

20. What is squarely in issue is whether this consumption of alcohol is war-caused. The entry medical documents confirm that the veteran did not drink alcohol at the time of his enlistment. The applicant was then 18 years of age and would have then been below the legal drinking age. One reason which was pressed to explain the high level of alcohol consumption was the removal of the veteran from a pilot’s course. Dr Palazzo has examined the available records that concern the veteran’s pilot training. Dr Palazzo remarked there was no evidence that his transfer out of pilot training was as a result of poor behaviour or a disciplinary infraction.

21. The applicant thought that the veteran was removed from the course because of an “incident” despite the veteran having been on that course for six months and having passed all previous tests and examinations. The grandson of the veteran considers that the veteran had a disagreement with the instructor although there is no indication from this witness about the nature of the disagreement. The flying log book which is in evidence does not indicate any “incident” involving the veteran. However, the log book discloses that the proficiency of the veteran as a pilot was not assessed in accordance with the indicated scales; this issue may well have been a matter of concern to the veteran. The applicant gave evidence that the veteran was devastated by being removed from the pilot course and relegated to a non-commissioned role as an electrician.

22. On my review of the evidence I am reasonably satisfied that the alcohol consumption of the veteran was war-caused as required by cl 5 of the SoP.[11] The veteran first drank alcohol whilst he was in the service of the RAAF. His daughter, Ms Kopp, remarked that he was encouraged to drink and smoke in the service and that the veteran who was of impressionable age would have been under group pressure to drink with the other members.[12] I am conscious that some care must be exercised by the Tribunal when considering a case where the veteran commenced drinking during his war service but not in a theatre of war, however, pilot training at the time when the veteran was training would have been stressful. Dr Palazzo in his report referred to a 1944 document issued by the Directorate of Training which recognises that accidents and crashes were an ever-present risk that pilot trainees had to accept as a possible outcome of every flight.[13]

    [11] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 cl 5.

    [12] Exhibit F.

    [13] Exhibit B.

23. The applicant relies upon the veteran smoking whilst serving in the RAAF. There is a report from 1995 in which it is stated that the veteran did not smoke prior to enlisting in the RAAF and that everyone was smoking as cheap cigarettes were available in the camp.[14] However, at the time of the medical board examination on 24 February 1943 the veteran smoked 70 cigarettes per week.[15] There is no contention by the respondent who was in possession of the smoking report completed by the veteran that the veteran did not consume the amount of tobacco as stipulated in factor 6(b) of the relevant SoP.[16] Certainly the veteran had already commenced smoking before his enlistment.

    [14] Exhibit A pp 10-11.

    [15] Ibid p 2.

    [16] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 cl 6(b).

24. The veteran was 18 years of age when he enlisted in the RAAF. It is probable that he would have been an impressionable youth who was influenced by peer pressure. The veteran stated that “everyone was smoking” and “cheap cigarettes were available in camp.”[17]

    [17] Exhibit A.

25. The veteran himself reported that there was a gradual increase in his smoking for 12 months after he enlisted until he smoked two packets per day and 2 oz. per week until 1960. As the definition of “pack-years of cigarettes or the equivalent thereof in other tobacco products” in cl 9 of the relevant SoP[18] refers to a calculation of consumption, the consumption of cigarettes and tobacco would be in excess of that required by factor 6(b). That factor is also satisfied by the smoking having commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum in 2009. I accept that this account of the veteran is credible and I conclude that the veteran was influenced to increase his consumption of tobacco by camp life and cheap cigarettes as well as the stress of war-time training as related by Dr Palazzo.

    [18] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013.

26. The report of the veteran is consistent with the account of the applicant who remarked that the veteran was a heavy smoker who smoked more than 20 cigarettes per day.[19] After considering the evidence before me I am reasonably satisfied that the smoking of the veteran is related to his war service as required by clause 5 of the SoP.

    [19] Exhibit D.

27. In applying s 120(4) of the Act I am reasonably satisfied that the material before this Tribunal raises a connection between the death of the veteran and his service and the relevant SoP[20] upholds the contention that the death of the veteran is connected with that service.[21] On this ground alone the applicant can succeed.

    [20] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013.

    [21] Veterans’ Entitlements Act 1986 (Cth) s 120B(3).

28. I also consider that the applicant can succeed under s 120B(3) of the Act by reference to her claim based on the hypertension of the veteran.

29. The applicant contends that the acute renal failure was caused or contributed to by hypertension. Certainly this was the opinion of the general practitioner of the veteran, who reported that in 1995 the veteran had hypertension and mild hypertensive nephropathy.[22]  Dr George was asked when the veteran began to have chronic kidney disease, he was of the opinion that the veteran had the condition as early as 2011 but quite likely earlier than that. Dr George had regard to when the veteran had hypertension. There is no contention that the veteran did not satisfy factor 6(b) of the SoP concerning Hypertension No. 64 of 2013, which refers to consuming an average of at least 500 g of alcohol per week for at least the six months before the clinical onset of hypertension. As there are 10 g of alcohol in a standard drink the required level of consumption is 50 standard drinks per week which is met by the material before me having regard to the consumption of wine and spirits. It would be fair to find that there was clinical onset of hypertension in 1965 when, as Dr George stated, there were two readings which were above the normal range in that year. It would not be fair to find that the veteran had hypertension in 1943 because, as Dr George has quite properly explained, there is no information as to how that reading was made. The definition of hypertension in cl 3(b) of the relevant SoP[23] refers to whether a reading was taken using ambulatory blood pressure measurement and excludes temporary elevations. There is no evidence from the readings in 1946 that the veteran had hypertension in the year when he ceased duty. Dr George has mentioned that there were “figures from 1946 which are just within the normal range”.

    [22] Exhibit A p 46.

    [23] Statement of Principles concerning Hypertension No. 64 of 2013.

30. The evidence from the applicant and her daughter is that the veteran consumed a constant, high level of alcohol up until the time of his hospitalisation prior to his death.[24] I have already determined that the alcohol consumption of the veteran was caused by the stress of him undertaking war-time pilot training. I am therefore reasonably satisfied that the chronic kidney condition of the applicant is related to the service rendered by the veteran as required by cl 5 of the relevant SoP.[25] Clause 4 of that SoP recognises that death from hypertension can be related to service rendered by veterans.

    [24] Exhibit E, F.

    [25] Statement of Principles concerning Hypertension No. 64 of 2013.

    DECISION

1. I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Eileen Pye is entitled to a widow’s pension. The date of effect of this decision is 12 March 2012.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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

Associate

Dated 31 March 2015

Date(s) of hearing

21 October 2014; 24 December 2015

Date final submissions received

Counsel for the Applicant

19 January 2015

Mr A Harding

Solicitors for the Applicant

Terence O'Connor

Advocate for the Joined Party

Mr K Rudge, Department of Veterans' Affairs