Hayes and Repatriation Commission

[2004] AATA 193

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 193

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/894

VETERANS'       APPEALS     DIVISION

Re:         DOROTHY MARJORIE HAYES

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             27 February 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - widow's entitlement - renal failure - myeloma - hypertension and ischaemic heart disease - whether death related to service

Veterans’ Entitlements Act 1986 ss8(1), 120, 120A

East v Repatriation Commission (1987) 74 ALR 518

McKenna v Repatriation Commission (1999) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

27 February 2004  G. D. Friedman, Member

1.      This is an application by Dorothy Marjorie Hayes (the applicant), widow of Charles Henry Hayes (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 22 July 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 5 September 2001 to refuse a claim for pension because the death of the veteran was not related to his service. 

2.      At the hearing of this matter on 11 February 2004 Mr D. De Marchi, solicitor, represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), with four exhibits (Exhibits A1‑A4) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.

BACKGROUND

4. The veteran was born on 21 June 1915. He enlisted in the Australian Army on 10 September 1941 and served in the Southwest Pacific. He was discharged on 5 March 1946. In accordance with s 8 of the Veterans’ Entitlements Act 1986 (the Act), the period constitutes operational service.

5.      In June 1993 the veteran underwent coronary artery surgery.  On 1 August 1993 the respondent accepted anxiety state as a war-caused disability.  His non-accepted disabilities were symptoms (pain in abdomen) ascribed to anxiety state, coronary artery disease and right shoulder condition.  In 1999 the veteran developed multiple myeloma (malignant cancer of plasma cells) followed by renal failure, and he died on 11 July 2001.  The cause of death was certified as Acute renal failure - 2 weeks; Multiple myeloma – 20 months. 

6.      On 27 August 2001 the applicant applied for a war widow's pension.  On 5 September 2001 the Repatriation Commission rejected the application.  On 24 September 2001 the applicant sought review by the VRB.  On 29 July 2002 the VRB affirmed the decision.  On 22 August 2002 the applicant sought review of the VRB decision by the Tribunal. 

EVIDENCE

7.      In a written statement dated 26 April 2003 (Exhibit A3) the applicant said that she met the veteran in 1943 and they married in 1946.  She referred to his accepted disability of anxiety state, and said that prior to service the veteran was easy-going, but from the early 1960s he suffered what she considered to be panic attacks, including waking at night with feelings of gloom and anxiety.  She said that the veteran also suffered panic attacks when driving his motor vehicle.  The applicant stated further that the veteran suffered from angina pains from at least 1978, and at that time he was diagnosed with high blood pressure.

8.      In an undated written statement, made in about August 2001 (T6, p25), the applicant said:

My husband was severely stressed from the time of discharge until death, because of his experience during action…He was of a nervous nature, suffered dreams and nightmares, re-experiencing events and flash-backs, frequently awakening from sleep reliving some tragic event.  Generally had difficulty sleeping, became irritable, dogmatic and displayed fits of temper and arrogance.  He was difficult to live with.  This sequence continued after discharge until he died.

9.      In oral evidence the applicant told the Tribunal that the veteran took prescribed medication for hypertension from about 1983.  She said that following the heart surgery in 1993 in addition to panic attacks the veteran often became anxious about conditions on the family farm.

10.     In a written report dated 16 December 2002 (Exhibit A1), Dr R. Collins, consultant forensic pathologist, said that he had reviewed the medical records and was of the opinion that there was insufficient information to adequately assess the completeness of the death certificate prepared by the veteran’s treating doctor.  He acknowledged that multiple myeloma played a significant role in the death of the veteran, but referred to the possibility of longstanding renal impairment caused by atherosclerotic vascular disease within the kidney.  Dr Collins stated:

It is apparent that the late veteran suffered from an anxiety state, which had been accepted by the Veterans’ Affairs Department as being war caused.  The significance of the existence of this condition is that chronic stress is probably an aetiological agent in the generation of atherosclerotic vascular disease via the mechanism of hypertension.  Therefore, if it could be established the late veteran’s demise was hastened or, due in part, to hypertension-related ischaemic heart disease, then a potential nexus exists between his war service and death.

11.     In an additional written report dated 15 July 2003 (Exhibit R1), after reviewing medical notes concerning the veteran’s multiple admissions to the Austin and Repatriation Medical Centre and the Kilmore and District Hospital, Dr Collins stated:

Following the late Mr Hayes’ discharge from the Austin and Repatriation Medical Centre in July 1993, after coronary artery by-pass surgery, there is apparently no indication as to the status of his renal function, either in the various hospital records or Dr Ryan’s clinical notes, until the diagnosis of multiple myeloma was made in 1999.  Therefore, whilst it is possible that his renal function continued to be mildly abnormal, as a consequence of atherosclerotic renal disease during this interim period of approximately 6 years, there is no robust clinical/pathological evidence to support this hypothesis and it could not be excluded that the acute renal failure which contributed to his demise was not solely due to the complications of myeloma.

12.     On the question of heart disease, Dr Collins noted that the admission notes from the Kilmore and District Hospital from 1 to 11 July 2001 do not refer to the presence of any symptoms strongly indicative of ischaemic heart disease.  He said:

…and, therefore, it could not be confidently opined that this well documented medical condition played even a hastening role in his demise.

13.     In oral evidence Dr Collins stated that it would be reasonable to say that longstanding renal impairment may have been caused by hypertension.  In cross‑examination Dr Collins said that coronary artery disease might have contributed to the veteran’s death.  He was unable to give an opinion on whether the deterioration in the veteran’s renal function, after the 1993 surgery, was caused by the stress of the operation or by some other factor.

14.     In a written report dated 24 November 2003 (Exhibit R1), Dr F. Ryan, the veteran’s general practitioner, referred to a number of recorded blood pressure readings that were above normal, and stated:

…I believe that these were related to his anxiety as they were often in the context of a new and worsening symptom and I have many more readings that were clearly normal.

…

To additionally complicate matters – medications used to prevent angina often also lower blood pressure but after his coronary artery bypass grafts he was on virtually no medication and his blood pressure was usually normal.

In oral evidence Dr Ryan noted a number of elevated blood pressure readings in the  period from 1972 to 1982 (for example 155/90 on 3 May 1972, 135/70 on 29 May 1974, 140/80 on 9 June 1981 and 140/90 in 1998) and stated that he did not believe that the veteran suffered from hypertension.  In cross-examination Dr Ryan conceded that ischaemic heart disease may have contributed in some small way to the veteran’s death, but said that any contribution was insufficient to be included on the death certificate.  

15.     In a report dated 12 July 1993 from the Austin Hospital's Department of Biochemistry (Exhibit R3, p152), tests for urea (current reference range 2.5-2.7) conducted after the veteran’s heart surgery show that he recorded 6.3 on 5 July 1993, 6.8 on 6 July 1993, 9.9 on 7 July 1993, 9.6 on 8 July 1993 and 5.2 on 11 July 1993.  Tests for creatinine (current reference range 0.03-0.11) show that the veteran recorded 0.106 on 5 July 1993, 0.106 on 6 July 1993, 0.135 on 7 July 1993, 0.130 on 8 July 1993 and 0.112 on 11 July 1993.

CONSIDERATION OF THE ISSUES

16. Section 8(1) of the Act provides:

(1)        Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service.

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

17. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s120A. It provides:

(1)          This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

…

(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);

18. The principles to be applied in cases where s 120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

19.     The parties agreed that the relevant Statement of Principles (SoP) for hypertension is  N° 35 of 2003.It defines hypertension as :

2.(b) …  permanently elevated blood pressure, evidenced by:

(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or

(ii)the regular administration of antihypertensive therapy to reduce blood pressure,

20.     The definition of hypertension states that it excludes temporary elevations in blood pressure.  For hypertension or death from hypertension to be related to service the SoP provides as one factor::

(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension;

21.     Mr De Marchi submitted that the applicant relied upon a reasonable hypothesis that the veteran suffered from hypertension, resulting from his accepted condition of anxiety state, and that he therefore satisfied factor 5(n).  Mr De Marchi also submitted that there was a link between hypertension and ischaemic heart disease, which may have contributed to renal impairment and death.  He said that, for this reason, the veteran’s death was war-caused.

22.     Mr De Marchi drew the Tribunal's attention to the beneficial nature of the legislation.  He referred to the applicant’s evidence of the veteran's panic attacks and the evidence, in the medical notes, of problems with the veteran’s kidneys.  He submitted that the readings of high blood pressure confirmed that the veteran suffered from hypertension and that incidences of lower blood pressure might be due to masking factors of medication taken by the veteran.  Although there was no mention of ischaemic heart disease in the death certificate, Mr De Marchi submitted that Dr Collins and Dr Ryan had not ruled out the possibility that ischaemic heart disease had contributed to the veteran’s death.  He pointed to elevated readings of urea and creatinine after the heart surgery in 1993, and stated that these indicated an impaired kidney function at that time, several years before the clinical onset of myeloma.

23.     Ms McCulloch referred to Dr Ryan’s evidence that there was no indication of hypertension before the veteran’s heart surgery in 1993, and that there were fluctuations in his blood pressure.  She said that there was no evidence of hypertension.  Ms McCulloch stated that clinical onset of ischaemic heart disease occurred in 1987 and there was no medical evidence that hypertension existed before then.  She submitted that although Dr Collins and Dr Ryan did  not rule out that ischaemic heart disease had been a  contributing factor to the veteran’s death, there was no medical evidence to support this proposition.      

24.      The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.

25.     In Repatriation Commission v Hancock (2003) 37 AAR 383 Selway J set out the correct approach as follows:

…

(a)First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out….  .

(b)Next, the Tribunal was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death.

(c)If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'.

(d)If only a determination under s 180A(2) is applicable, then the application must fail.

(e)If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.

26.     In following the approach laid down in Hancock, the Tribunal finds that the pre-conditions, other than causation, have been made out because the applicant’s husband was a veteran, the veteran had died and the applicant was his widow.  In relation to a determination, to the Tribunal’s reasonable satisfaction (s 120(4) of the Act), of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the cause of death was acute renal failure and multiple myeloma.

27.     The Tribunal takes into account the beneficial nature of the Act and the fact that direct evidence from the veteran was not possible.  The Tribunal finds that Dr Ryan, as the veteran's treating doctor over a lengthy period, had an excellent knowledge of his medical condition.  In respect of the veteran’s blood pressure readings, the Tribunal accepts the evidence from Dr Ryan that although the veteran sometimes had elevated readings, other readings were normal, particularly after his heart surgery in 1993, when there was minimal medication.  Taking into account the requirement of the definition of hypertension in the SoP that temporary elevations must be excluded, the Tribunal finds that the veteran’s blood pressure was not permanently elevated.  So he does not satisfy the definition of hypertension in the SoP.  As hypertension is not a cause of the death of the veteran this SoP is not applicable.

28.     On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran was multiple myeloma, identified in SoP 55 of 2003 (which revoked N° 72 of 1999) concerning myeloma.   

29.     As there is an SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death.  Factors 5(a) to (e) of SoP N° 55 of 2003 state:

(a)having received a cumulative equivalent dose of 0.05 Sievert o atomic radiation to the bone marrow where this dose was accumulated at least five years before the clinical onset o myeloma; or

(b)working as a painter for a period or periods of time totalling at least 312 days before the clinical onset of myeloma, and where the work as a painter has ceased, the clinical onset of myeloma  has occurred within 20 years of cessation; or

(c)spraying or decanting a herbicide containing 2,4-dichlorophenoxyacetic acid (2,4-D) or 2,4,5- trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of myeloma; or

(d)being:

(i)on land in Vietnam, or

(ii)at sea in Vietnamese waters, or

(iii)on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least 30 days, at least five years before the clinical onset of myeloma; or

for a cumulative period of at least 30 days, at least five years before the clinical onset of myeloma; or

(e)being infected with Human Immunodeficiency Virus (HIV) at the time of the clinical onset of myeloma; or

(f)inability to obtain appropriate clinical management for myeloma.

Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable.  That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him.  If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.  In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at 596:

If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…

Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP concerning myeloma, and therefore the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis.

30.     In respect of the sub-hypothesis that ischaemic heart disease was linked to hypertension, each sub-hypothesis must be proven (McKenna v Repatriation Commission (1999) 86 FCR 144). There was no persuasive medical evidence that would lead the Tribunal to conclude that hypertension-related ischaemic heart disease was a medical cause of death (or kind of death) (Hancock).  The evidence of Dr Collins is merely speculative, and as has been stated by the Federal Court in  East v Repatriation Commission (1987) 74 ALR 518 at 534, a reasonable hypothesis requires more than a possibility, it must be pointed to by the facts. Dr Collins evidence does no more than leave open a possibility. Dr Collins’ evidence points to the problems posed by such a hypothesis. He is frank in stating that there are no records of the veteran’s renal function post-surgery, which might support such a hypothesis. Furthermore, the possibility of a link through hypertension, upon which he speculates as an alternative hypothesis, is ruled out for the reasons given above. Therefore, the claim must fail.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the thirty‑one [31] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  11 February 2004

Date of decision:  27 February 2004
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Ms J. McCulloch
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs