Flanders and Repatriation Commission

[2007] AATA 1879

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1879

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1840

VETERANS’ APPEALS DIVISION		)
Re		MAUREEN FLANDERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date17 September 2007

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the veteran’s death was war-caused with effect from 29 March 2006.

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service during World War II – determination of the “kind of death” – whether death was war-caused – Statements of Principles – decision set aside

Veterans’ Entitlements Act 1986 ss 8, 119, 120, s120A, 177

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v Codd (2007) 95 ALD 619

WRITTEN REASONS FOR ORAL DECISION

18 October 2007   M J Carstairs, Senior Member

1.      Douglas Flanders, who died on 18 March 2006, served in World War II between 22 December 1941 and 18 April 1946, including service in the theatre of war in New Guinea.  His wife, Mrs Maureen Flanders, has claimed pension on the basis that his death was war-caused.

2. The question of whether Mrs Flanders is entitled to pension is governed by the provisions in s 120 of the Veterans' Entitlements Act 1986, which provides for the standard of proof in matters of war-causation where a veteran has operational service, and also by s 120A which deems the standard met when a hypothesis setting out a possible connection with war service conforms with a factor set out in a relevant Statement of Principles determined by the Repatriation Medical Authority.

3.      This legislative framework was interpreted by the Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as requiring decision-makers to follow a 4 step reasoning process to determine whether a condition is war-caused. In Repatriation Commission v Hancock [2003] FCA 711, Selway J said that in cases where a veteran has died there are two other steps before applying the Deledio methodology.  Those steps are:

§  determining that the pre-conditions for the claim (other than causation) are made out - including that the veteran has died and that the applicant was his widow; and

§  determining the kind of death suffered by the veteran (as referred to in s 120A(4) of the Act), this needing to be established to the standard of reasonable satisfaction. 

4.      No issues arise here with respect to the pre-conditions: the deceased was a veteran and Mrs Flanders is his widow.  Given the parties’ contentions and the remaining steps set out in Deledio and Hancock, the matters in issue in this case were:

§  how to characterise the veteran's kind of death.

§  did the material raise an hypothesis or hypotheses connecting that kind of death with the circumstances of the veteran's service?

§  was there a Statement (or Statements) of Principles in force, relevant to that kind of death?

§  was the raised hypothesis reasonable?  To be so it needed to contain one or more of the factors set out in the relevant Statement of Principles; and

§  was the death war-caused?  This is the last of the Deledio steps – considered once a reasonable hypothesis is raised.  Once a reasonable hypothesis is raised the decision-maker must be satisfied beyond reasonable doubt that an injury is not war-caused.  If the decision-maker is not so satisfied the claim will succeed.

5.      Mrs Flanders has relied upon a number of hypotheses that might link the veteran’s death to his service and she particularly relied upon connections with the veteran's smoking which he commenced during war service, and continued for some time thereafter.  

CHARACTERISING THE KIND OF DEATH

6.      The veteran’s death certificate[1] recorded as the causes of death:

§  Cerebral embolus (8 days)

§  Atrial fibrillation (10 years)

§  Hypertension (30 years)

§  Gangrenous right foot due to peripheral embolus (8 days)

[1]        Death certificate 13 April 2006 – T4, p 37

7.      The veteran’s general practitioner, Dr Byrnes, who treated the veteran from 1991 until his death, subsequently filed a report stating that the veteran suffered from ischaemic heart disease and hypertension[2].  Both conditions in his opinion caused atrial fibrillation.  He stated that the cerebral embolus from which the veteran died was associated with his atrial fibrillation[3].  Dr Byrnes gave oral evidence that the veteran:

§  was suffering from atrial fibrillation, evidenced by ECG, when he commenced treating him in 1991, but probably the condition was present earlier.  Dr Byrnes had stated in 1994 that the veteran had atrial fibrillation for at least 10 years due to coronary artery disease[4];

§  had hypertension from about 1966;

§  suffered a cerebral embolus in 2006;

§  suffered from ischaemic heart disease.

[2]        Exhibit A2

[3]        Exhibit A2.

[4]        T4, p24

8.      Thus, Dr Byrnes, who certified the veteran’s death, identified ischaemic heart disease as playing a role in the veteran’s death in addition to the medical conditions that he had identified on the death certificate.  As the Federal Court said in Repatriation Commission v Towns [2003] FCA 1262, the expression kind of death is wide reaching and not limited to the prime cause of death in a medical sense.  The Federal Court in Repatriation Commission v Codd (2007) 95 ALD 619 stated that the question of kind of death looks to the medical cause of death including the underlying or contributing causes. 

9.      I was satisfied taking into account the evidence of Dr Byrnes that the veteran’s kind of death included complications from ischaemic heart disease, in addition to the conditions specifically identified on the veteran’s death certificate.  Identifying the kind of death enables the decision-maker to specify whether a Statement of Principles applies to that kind of death.

10.     With that point in mind, I observe that the following Statements of Principles were in place:

§  Ischaemic heart disease – Instrument No 53 of 2003 (as amended);

§  Cerebral embolus – Instruments No 52 of 1999 (as amended) and No 51 of 2006;

§  Atrial fibrillation – Instrument No 19 of 2003; and

§  Hypertension – Instrument No 35 of 2003 (as amended)

RELATIONSHIP TO SERVICE

11.     It was readily apparent that the first two of the Deledio steps were satisfied with respect to the medical conditions of ischaemic heart disease, cerebral embolus, and atrial fibrillation, based upon the hypothesis posing a connection between the veteran’s commencing smoking during operational service.  As there was no factor posing a connection between smoking and the development or exacerbation of hypertension, and no other basis for an hypothesis was identified, the veteran’s hypertension cannot be related to his war service. That is, the claim as it related to hypertension fails at the first of the Deledio steps which requires that the material taken as a whole points to an hypothesis connecting the death to the veteran’s service. 

12.     The first and second steps in Deledio were satisfied with respect to the three other conditions.  I should observe here that with respect to atrial fibrillation, the material pointed to two possible hypotheses, as then reflected in factors identified in the Statement of Principles.  These hypotheses relied on a connection between the veteran’s ischaemic heart disease and atrial fibrillation, and the presence of hypertension at the time of the onset of atrial fibrillation.  As the Veterans' Review Board decision correctly pointed out, an hypothesis relying on hypertension must necessarily fail if, as here, no relationship between hypertension and service could be shown.  The one possible hypothesis that remained was one connecting atrial fibrillation with ischaemic heart disease, which depended on the veteran’s circumstances satisfying that Statement of Principles.

13.     The third of the Deledio steps requires consideration of whether any raised hypothesis is reasonable and where Statements of Principles apply, for a hypothesis to be reasonable it must fit the template provided for in such a Statement. 

14.     As already noted the hypotheses in this case referred to the veteran taking up smoking during his service in World War II.  Mrs Flanders said that the veteran commenced smoking when he joined the services due to peer pressure but increased his smoking during overseas service in New Guinea from February 1944 to April 1946.  The veteran had stated in a claim in 1989 that he had smoked regularly from the time he was serving overseas and that his smoking increased when they were being shelled. 

15.     Mrs Flanders said that she understood that the veteran continued to smoke after discharge, for about 3 years, mainly on the weekends and when socialising with his mates.  In her oral evidence Mrs Flanders said that the veteran was a nervy person who smoked to relieve his anxiety.  It should be observed that Mrs Flanders did not meet the veteran until a number of years after his service, but relies on what the veteran told her of these times.

16.     Dr Byrnes said that the veteran’s ischemic heart disease was associated with his atrial fibrillation and the final cause of death and related back to the veteran’s smoking[5].

[5]  Exhibit A2

17.      The factors relating to smoking identified in the applicable Statements of Principles were:

§  with respect to ischaemic heart disease, factor 5(e):

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

……

(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;

§  with respect to cerebral embolus the factor in Statement of Principles No 52 of 1999 was factor 5(k):

for cerebral ischaemia only,

(i) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation;

and in the more recent Statement of Principles, namely No 51 of 2006 it was factor 6(o):

(o) for cerebral ischaemia only,

(ii) where smoking has ceased before the clinical onset of cerebrovascular accident:

(A) having smoked an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident, and the clinical onset of cerebrovascular accident has occurred within ten years of cessation; or

(B) having smoked an average of at least twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident; …..

18.     Mr Thrupp who appeared for the Repatriation Commission submitted that the evidence indicated that the veteran smoked between December 1941 and, taking an uppermost point, December 1949.  Mr Thrupp did not seek to challenge Mrs Flanders’ evidence.  Mr Thrupp submitted that doing the best one could with the estimating the veteran’s smoking, the following figures could be applied:

§  between 22 December 1941 and 18  February 1942 the veteran consumed 501.5 cigarettes

§  between 19 February 1942 and 18 April 1946 the veteran consumed 20,391.5 cigarettes

19.     Mr Thrupp acknowledged that the evidence was less clear for the period to the end of 1949 and submitted that if the veteran smoked his average of 13 cigarettes per day from 22 December 1941 until 31 December 1949 the total cigarettes consumed would have been 38,090, which exceeded the requirement of 36,500 cigarettes.  This evidence would point to the factor in the Statement of Principles being met.  I accept Mr Thrupp’s submission on that point.

IS THE VETERAN’S DEATH WAR-CAUSED?

20.      This requires a consideration of the fourth of the Deledio steps and death will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case.

21.      The evidence of Mrs Flanders and her daughter Mrs Lynette Engstrom was that their evidence to the Veterans' Review Board had been misunderstood at several points.  Mrs Flanders said that her husband spoke to her about his cigarette consumption and that he continued to smoke after the war with his mates. 

22.      While there were discrepancies in the responses to the cigarette questionnaire filled out by the veteran in 1989 and the evidence now given by Mrs Flanders, I have no reason not to accept Mrs Flanders’ evidence now as given honestly and as her best recollection of what the veteran told her about his smoking. There are no independent witnesses available.  However the terms of paragraph 119(1)(h) of the Act provides that account is to be taken of any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time on, for example, the availability of witnesses.  In that regard it was unfortunate that the veteran’s medical records prior to 1990 when he commenced seeing Dr Byrnes had been lost in a fire at his previous treating doctor’s surgery.

23.      It is also the case that, pursuant to paragraph 120(6)(a) of the Act, no onus of proof is borne by Mrs Flanders in these proceedings and that, pursuant to paragraph 119(1)(f) of the Act, rules of evidence are not binding and the Tribunal may be informed on any matter in such manner as thought just.

24.      I accept that, in giving her evidence, Mrs Flanders gave a truthful account of her recollections of the veteran’s smoking habit and what he told her about it.  I am satisfied that the veteran’s smoking habit was both temporally and causally related to his eligible war service through peer pressure as well as the stressful aspects of serving as a rifleman in New Guinea.  It is not disputed that this smoking habit contributed to the development of ischaemic heart disease and the cerebral embolus that led to the veteran’s death.  This was Dr Byrnes’ evidence and he has consistently maintained that the veteran’s death was linked to his smoking habit developed during his war service.

25. This means that I am not satisfied beyond reasonable doubt that the veteran’s death was not war-caused in accordance with the terms of section 8 of the Act.

26. Mrs Flanders’ initial claim was made on 16 May 2006, however her application to the Veterans' Review Board was made more than three months after the original decision. In accordance with section 177 of the Act, pension is payable from 6 months prior to her application to the Veterans' Review Board, that is 29 March 2006.

DECISION

27.     The Tribunal sets aside the decision under review and substitutes the decision that the veteran’s death was war-caused with effect from 29 March 2006.

I certify that the preceding 27 paragraphs are the true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed:       …………………………………
  F Kamst, Associate

Dates of Hearing  17 September 2007
Date of request for written reasons           21 September 2007
For the Applicant  Mr T Lincoln
For the Respondent  Mr T Thrupp, Departmental Advocate