Harrison and Repatriation Commission
[2006] AATA 740
•30 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/766
VETERANS' APPEALS DIVISION )
Re PAMELA HARRISON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Dr G Maynard, MemberDate30 August 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .........[Sgd]..........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – determination of cause of death – civil standard of proof - cause of death correctly nominated in death certificate - application of Statements of Principles - no relationship to eligible war service - death not war-caused – decision affirmed
Administrative Appeals Tribunal Act 1975 ss 37
Veterans’ Entitlements Act 1986 ss 5E, 7, 8, 11, 14, 120(4), 120B
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622
Nicolia v Commissioner for Railways [1972] ALR 185REASONS FOR DECISION
30 August 2006 Mr RG Kenny, Member Background
1. Albert Harrison (the veteran) served in the Australian Army during World War II from 28 May 1942 until 3 August 1945. That service constitutes eligible war service in accordance with section 7 of the Veterans’ Entitlements Act 1986 (the Act). Mr Harrison died on 13 April 1996 and, on 30 October 2003, Pamela Harrison, his widow and a dependant, as those terms are defined in sections 5E and 11, respectively, of the Act, lodged a claim, under section 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 31 October 2003 and, in turn, by the Veterans’ Review Board (the Board) on 14 May 2004. Mrs Harrison now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mrs Harrison was represented by Mr A Harding of counsel. The respondent was represented by Mr B Williams. Material available to the Tribunal included the documents (the T documents) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act).
Issues and Legislation
3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Potentially relevant in this matter are paragraphs 8(1)(b) and 8(1)(f) of the Act which read:
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
4. The standard of proof applicable to this determination is set out in subsection 120(4) of the Act. This requires all relevant matters in relation to causation to be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FLR 327 at 335. In addition, the Board is required to apply the terms of any relevant Statements of Principles which have been published by the Repatriation Medical Authority (RMA). Those Statements list the only ways in which a relevant causal nexus to service can be found. Where no such Statement of Principles has been published, the matter is determined in accordance with the available medical evidence.
5. Before considering the matter of causation, it is necessary to determine the kind of death, as that term appears in subsection 120B(1) of the Act, applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. Such diagnostic matters are also to be determined in accordance with the terms of subsection 120(4) of the Act: see Fogarty v Repatriation Commission (2003) AAR 363 at 373 and Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634.
6. Accordingly, the first issue for the Tribunal to consider and determine is the underlying cause or causes of the veteran’s death in this matter. The second issue to be determined is whether that kind of death was causally associated with the veteran’s service.
Kind of Death
7. The veteran’s death certificate, dated 16 April 1996, nominated lower lobe pneumonia with a duration of 7 days as the direct cause of death and noted that this was due to (or as a consequence of) dementia with a duration of 10 years. The respondent and the Board accepted that the underlying cause of Mr Harrison’s death was dementia from Alzheimer’s Disease. Mr Williams submitted that this was correct. Mr Harding submitted that deep vein thrombosis, a condition accepted by the respondent as being war-caused under the Act, contributed to the veteran’s death on the following bases: the veteran’s deep vein thrombosis was a chronic condition that led to increasing frailty in the veteran which contributed to his death; or, alternatively, the veteran’s underlying deep vein thrombosis was not resolved and contributed directly to death by leading to the development of pulmonary embolism. Mr Harding’s submission challenged the certified cause of death. However, I accept that the entry on the certificate is no more than prima facie evidence of the cause of death: see Nicolia v Commissioner for Railways [1972] ALR 185 at 186 and 187.
8. Medical evidence in this matter was given by consultant physician Dr J Forgan-Smith, physician Dr R Goodwin and Senior Medical Officer Compensation with the respondent, Dr P Grant.
9. During his army service in 1942, the veteran was diagnosed with varicose veins for which he was hospitalised for 13 days and treated in July of that year. He also had a rectal prolapse in 1945 which led to his being discharged from the army on medical grounds. No reference to deep vein thrombosis is made in the veteran’s service medical records. He was admitted to hospital in Sydney in September 1952 for repair of his rectal prolapse. Medical records reveal that he received treatment, in December 1952, for “stitch ulcers following operation” and that he complained, in May 1956, of pain in the right thigh below a scar which was left as a result of the removal of a “sinew to strengthen rectal muscles” in the 1952 surgical procedure. A second procedure for the repair of rectal prolapse was conducted on 1 August 1972 at Concord Hospital and this led to the development of deep vein thrombosis in the veteran’s legs. On 16 August 1972, the respondent accepted that this was related to his service. It was accepted as “deep vein thrombosis (post operative – now resolved)” and it was determined that there was insufficient incapacity associated with the condition to warrant payment of a pension. Subsequently, he was also diagnosed as having “axillary venous thrombosis left arm” and the veteran’s entitlements were amended on 19 January 1973 to include this condition. In a medical report, dated 7 March 1973, the left arm condition was referred to and it was noted that no further investigations nor treatment were indicated at that time.
10. A medical report from the Royal Brisbane Hospital, dated 3 June 1996, referred to a discharge summary which was obtained from Greenslopes Hospital and which indicated that the veteran had been an inpatient there from 27 July 1993 until 10 August 1993 with the principal diagnosis being pulmonary emboli and left thigh and poplitial deep vein thrombosis. It also noted that he had been discharged with prescribed medication which included the anticoagulant Warfarin. The 1996 report also referred to an admission in 1995 and to the diagnosis at that time of dementia. It noted that a full dementia screen had been conducted and that the only positive finding was a B12 deficiency.
11. In the 1970s, there was continuing management of the veteran’s varicose veins in that he was required to wear elastic stockings. However, there is no material before the Tribunal which points to a continuing presence of deep vein thrombosis between the episodes in 1972 and 1993. A medical report, dated 6 April 1977, noted that the veteran described his legs as being “very good” with “no oedema”. Tests at that time revealed that there was no obstruction or incompetence of the deep veins. In a report dated 19 April 1982, surgeon Dr B Bouvier was considering the prospects of an operation for inguinal hernia. He noted the past history of deep vein thrombosis and, though he stated that this increased the chance of another one developing, there was no suggestion of the presence of such condition at that time.
12. Dr Goodwin completed medical reports dated 12 January 1998, 4 October 1998, 29 May 2005 and 28 May 2006. In his first report, he wrote that peripheral veins which have been varicosed and complicated by the development of deep vein thrombosis are likely to suffer the same complication again under adverse circumstances, especially where the patient’s immobility is a feature. In his final report, Dr Goodwin stated that the period of the veteran’s immobilisation in hospital before his death was sufficient to precipitate an episode of deep vein thrombosis. He considered that deep vein thrombosis was an ongoing underlying condition in the veteran. He noted that the accepted disability in the veteran’s case included the description that it had “resolved”. He said that this did not mean the problem disappeared and that the tendency to have further episodes of deep vein thrombosis remained. He considered that this could result in a pulmonary embolus which, if it lodged in the veteran’s lungs, would have contributed to the cause of his death. He also said that the presence of the ongoing underlying deep vein thrombosis would have the effect of weakening the veteran, thereby contributing to the degree of frailty with which he presented at the time of his death in 1996.
13. Dr Goodwin considered that it was significant that, on 28 February 1996, just 40 days before death, an attending doctor had recorded that a deep vein thrombosis had been present clinically. In his report in 2005, he expressed the opinion that pneumonia in the form of pulmonary opacity due to infection cannot be reliably distinguished from opacity due to the infarction caused by pulmonary embolic disease associated with deep vein thrombosis. Dr Goodwin also referred to the hospital admission in 1993 and noted that the veteran’s doctor directed that he remain on Warfarin indefinitely because of his history of deep vein thrombosis. He also noted that the administration of Warfarin to the veteran was ceased during his final admission to hospital. He said that this had an important bearing on the diagnosis of lower lobe pneumonia and said that the most probable cause of death was deep vein thrombosis with resultant pulmonary embolism.
14. Dr Goodwin expressed the opinion that the dementia suffered by the veteran was due to a vitamin B12 deficiency. He said that more screening would have been needed in order to determine whether he suffered from Alzheimer’s disease. He agreed that this was a possible diagnosis but maintained that it was not necessarily the case that he suffered from that condition.
15. Dr Forgan-Smith said in his report and in phone evidence that the most likely cause of death in the veteran’s case was hypostatic pneumonia. He said that “hypostatic” refers to the pooling of secretions in the lungs because of immobility. He noted that, in March 1996, a swallow assessment had been undertaken of the veteran which showed uncoordinated aspiration. He described this as a common cause of pneumonia in elderly patients. He also noted that the veteran’s temperature on 6 July 1996, after he had been admitted to hospital, was 38.2 degrees and he considered that this was most likely indicative of the presence of infection. He also noted that, on the same date, an examination had revealed no swelling in his legs and, again, he considered this to be indicative of an absence of deep vein thrombosis at that time. Dr Forgan-Smith referred to the discontinuation of Warfarin. This had occurred three days before the veteran’s death. However, he said that it would take a week for the effects of the previously ingested Warfarin to cease. He also noted that antibiotics were being taken by the veteran at that time and he said that this would magnify the continuing action of Warfarin. Again, he said this supported the opinion that it was less likely that he died from pneumonia associated with pulmonary embolus due to deep vein thrombosis than an infection. He said that there was a very low chance of clotting in the three days after cessation of Warfarin. He said that there was no reference to any pulmonary embolism in the terminal illness notes at the time of death. He noted the reference to the diagnosis of deep vein thrombosis “clinically” in February 1996. However, he said that this did not indicate the presence of deep vein thrombosis but, rather, the result of a previous episode which continues to show on ultrasound analysis.
16. Dr Forgan-Smith agreed that the veteran had been in a frail condition during his final period of hospitalisation. He said there were many causes of frailty and these included a history of illness, age and dementia. He said that the presence of dementia is often associated with a lack of B12 vitamin. However, he said there was no causal association between the two. He agreed that there was no certainty with the diagnosis of Alzheimer’s disease in the veteran but he said that, in 90 percent of dementia cases, it is the correct diagnosis. He said that this would only be confirmed upon an analysis at autopsy. He said that, in his experience, there is a high correlation between medical opinion of the diagnosis of the condition and results obtained at autopsy.
17. Dr Forgan-Smith agreed that, once a person has experienced deep vein thrombosis, there is an increased risk of recurrence. He described this tendency as being permanent. However, he said that this did not usually occur when an anticoagulant such as Warfarin was taken. He also said that the person who experiences deep vein thrombosis would not automatically degenerate to a state of frailty. He said that clotting was a common phenomenon and that most people who experience it lead a full and active life. However, he agreed that it might play a part in the development of frailty.
18. The veteran’s terminal illness notes from the Royal Brisbane Hospital were in evidence and these were analysed by Dr Grant. He agreed with the opinion of Dr Forgan-Smith that there was nothing in the notes to suggest that the veteran developed a pulmonary embolus or that he suffered from deep vein thrombosis at that time. He also agreed that the effects of Warfarin would continue throughout the three days after it was ceased in the veteran’s case. Dr Grant was of the opinion that there was no connection between the episode of deep vein thrombosis in 1972 and the one in 1993.
19. On the basis of the medical evidence, in particular that of Dr Forgan-Smith and Dr Grant, I am reasonably satisfied that the veteran’s deep vein thrombosis was an episode that had resolved in 1972 and was unrelated to the subsequent re presentation of that condition in 1993. I have noted Mr Harding’s submission that the veteran should not be disadvantaged by an absence of records of treatment during that time. However, there is at least some medical evidence about deep vein thrombosis in that period i.e. that of Dr Bouvier. He referred to the existence of the condition in the past but not when he saw him in 1982. I accept the explanation provided by Dr Forgan-Smith and Dr Grant concerning the continuing effect of Warfarin after it was discontinued and Dr Forgan-Smith’s explanation of the “clinical” presence of deep vein thrombosis in February 1996. I have also noted his observations of criteria which point to an infective source of pneumonia rather than one associated with pulmonary embolus. These were his elevated temperature on admission to hospital and his difficulty in swallowing. I am satisfied, on the balance of probabilities, that the veteran’s accepted disabilities did not contribute to his death either directly through the precipitation of pneumonia or indirectly by contributing to his frailty.
20. I am also reasonably satisfied that the veteran suffered from dementia in the form of Alzheimer’s disease and that this was the underlying condition which was responsible for the development of pneumonia and of overall frailty and his subsequent death. In particular, I am reliant on the opinion of Dr Forgan-Smith. I have noted that his opinion that dementia and B12 vitamin deficiency are found together but that there is no causal association between them. For completeness, however, I have given consideration to the B12 vitamin deficiency described by Dr Goodwin.
Relationship to Service
21. The provisions of the Act relating to causation are set out above. Paragraph 8(1)(f) is not relevant because the accepted disabilities of the veteran were not implicated in his death. Pursuant to paragraph 8(1)(b) of the Act, his death will be war-caused if it arose out of, or was attributable to, any eligible war service rendered by him and if the relevant RMA Statement of Principles is satisfied. For Alzheimer’s disease, this is Instrument No. 18 of 2001. The factors that must exist before it can be said that, on the balance of probabilities, Alzheimer’s disease or death from Alzheimer’s disease is connected with the circumstances of service are:
(a)suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease; or
(b) inability to obtain appropriate clinical management for Alzheimer’s disease.
22. There is no material raised in this matter which would satisfy either of those factors and, on all of the evidence, I am reasonably satisfied that the veteran’s death from Alzheimer’s disease was not war-caused.
23. There is no Statement of Principles published by the RMA for the form of dementia as described by Dr Goodwin. The matter must be determined by medical evidence. Dr Grant, in his report of 6 November 1998, advised that he was unable to identify any plausible link between B12 vitamin deficiency and the veteran’s service. I am reasonably satisfied that there is no relationship between the veteran’s death and service by that means.
Decision
24. The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Philip Richardson
Legal Research Officer
Date of Hearing 13 June and 25 July 2006
Date of decision 30 August 2006
For the Applicant Mr A Harding, of Counsel
Woods Prince Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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