Haysom and Repatriation Commission
[2009] AATA 855
•6 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 855
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3149
VETERANS' APPEALS DIVISION ) Re DALMA HAYSOM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Regina Perton, Member Date6 November 2009
PlaceMelbourne
Decision
The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ eligible war service – kind of death – cerebrovascular accident – hypertension – diabetes mellitus - whether Statement of Principles met – alcohol – smoking - causal or temporal connection with service – decision affirmed.
Veterans’ Entitlements Act 1986 ss 8(1), 119, 120(1), 120(3), 120A, 196B
Bushell v Repatriation Commission (1992) 175 CLR 408
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelious [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
6 November 2009 Ms Regina Perton, Member 1. Bruce William Haysom died on 30 December 2006. He was 76 years old. Mr Haysom served in the Royal Australian Navy (the navy) as a naval airman from 17 July 1950 to 16 July 1956. He served in Korean waters aboard HMAS Sydney from 27 October 1953 to 2 July 1954 and his service during that time is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
2. Mrs Haysom lodged a claim for a war widow’s pension on 28 March 2007. A delegate of the Repatriation Commission (the Commission) determined on 4 July 2007 that Mr Haysom’s death was not war-caused and rejected the claim. On 13 July 2007 Mrs Haysom lodged an application for review of the Commission’s decision with the Veterans’ Review Board (the VRB). On 17 April 2008 the VRB affirmed the Commission’s decision. Mrs Haysom lodged an application for review of the VRB decision with the Tribunal on 11 July 2008.
3. The issue before the Tribunal is whether there is a causal relationship between the veteran’s death and his operational service.
Legislative Background
4. Section 8(1) of the Act provides:
Subject to this section …, 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;
…
5. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the…death with the circumstances of the particular service rendered by the person.
6. The provisions for dealing with the standard of proof in claims made on or after 1 June 1994 are found in s 120A of the Act. 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
…
7. 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 97-98 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.
8. The Tribunal is required to determine the kind of death, on the balance of probabilities, before it can determine whether there is an appropriate Statement of Principles (SoP) in existence and if it applies. It is not in dispute that Mr Haysom rendered operational service; that he has died and that Mrs Haysom is his widow.
Kind of Death
9. Mr Haysom died on 30 December 2006. Dr N Atkins, the certifying medical practitioner, indicated in the death certificate that the Cause of Death and Duration of last illness were:
Right middle cerebral artery territory infarct – 3 days
Hypertension - years
Type ii diabetes – years;
Metastatic pancreatic cancer – months
10. Professor J F Cade, Director of Intensive Care at the Royal Melbourne Hospital, provided a report dated 28 October 2008 concerning Mr Haysom’s death. Professor Cade provided a comprehensive medical history. His summary and his responses to questions put by the respondent’s solicitors, are accepted by the two parties and the Tribunal as describing the causes of death:
1. Summary of the veteran’s relevant medical history and comment on the severity of each medical condition suffered by him prior to his terminal phase.
….
The chief medical conditions from which he suffered the prior to his terminal phase are as follows.
i) Diabetes mellitus (non-insulin-dependent) has been present for about 10 years, and in recent months its control with diet and oral hypoglycaemic drugs had been poor. However, it had not been associated with any metabolic complication, though it no doubt contributed to his renal impairment and cerebrovascular disease.
ii) Hypertension has been present for about 5 years. While its control has not been problematic, it also no doubt contributed to his renal impairment and cerebrovascular disease.
iii) Renal impairment had been found 4 months earlier, but it was mild and it was doubtless a reflection of other conditions…rather than a problem in its own right.
iv) Biliary tract disease (gallstones, cholangitis and consequent pancreatitis) had been a significant recent problem but was currently quiescent.
v) Metastatic carcinoma of the pancreas had become the patient's most serious condition at the time of his final hospital admission. It was advanced and incurable. Palliative chemotherapy was planned, until cancelled because of his mental deterioration.
vi) Cerebrovascular disease was initially confirmed on 26 November, when CT scan of the brain (performed because of mental deterioration) showed an old lacunar infarct. Four weeks later, a massive cerebral infarct occurred, and this was the immediate cause of the patient's death.
2. What were the causes of the veteran’s death…?
In my opinion, the causes of death in this case are accurately recorded on the death certificate. The veterans several conditions (as described above) had been well documented and were under specialist care in hospital.
The immediate cause of the patient’s death was (cerebral infarct) due to cerebrovascular disease, which in turn was likely to have been contributed to by his hypertension and diabetes mellitus.
3. What other conditions were present at the time of the veteran’s death but did not contribute to his death?
Advanced, metastatic and incurable pancreatic cancer was also present. It would have become fatal in its own right in the near future, probably in the next few weeks, but it was not in a terminal phase at the time the patient died suddenly from a different and unexpected condition (i.e. massive stroke).
Renal impairment was also present at the time of the patient's final hospital admission (as described above), but it was mild and it would not have contributed to his death.
11. Both parties accepted Professor Cade’s report without requiring further evidence from him. The parties agreed, and the Tribunal accepts, that the kind of death was a cerebral infarct and that Mr Haysom’s hypertension and diabetes mellitus were likely contributing factors.
Relevant Statements of PrincipleS
12. The Repatriation Medical Authority has formulated SoPs for cerebrovascular accident, hypertension and diabetes mellitus. The SoP for cerebrovascular accident is Instrument No 51 of 2006. The relevant SoP for hypertension is Instrument No 35 of 2003 as amended. The relevant SoP for diabetes mellitus is Instrument No 11 of 2004 as amended.
13. The relevant SoPs set out a multiplicity of conditions and/or habits arising out of eligible service that could be linked to the kind of death suffered by Mr Haysom. It is not enough that he suffered from one of the precursor criteria. There must be a link between what happened during, or arose from, eligible service and the precursor condition or incident that led to the cerebrovascular accident and the related hypertension and diabetes mellitus.
14. There are 17 possible factors set out in paragraph 6 of Instrument No 51 of 2006 that must exist before a reasonable hypothesis can be raised to connect death from cerebrovascular accident with the circumstances of a person’s service. The factors that were raised by the parties as possibly relevant to Mr Haysom’s death are:
(a)having hypertension at the time of the clinical onset of cerebrovascular accident; or
….
(f)drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; or
….
(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; or
…..
(iv) having diabetes mellitus at the time of the clinical onset of cerebrovascular accident; or
….
15. The SoP for diabetes mellitus, Instrument No 11 of 2004 sets out several possible factors in paragraph 5. Based on Mr Haysom’s history, the parties and the Tribunal agree that the only possible relevant factor is:
….
(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
….
16. The SoP for hypertension, Instrument No 35 of 2003 as amended by Instruments No 3 of 2004 and No 11 of 2008, sets out many factors. Based on Mr Haysom’s history, the parties and the Tribunal agree that the only possible relevant factor is:
….
(b) consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension; or
….
Mr Haysom’s alcohol and tobacco consumption
17. Mrs Haysom said that she was 17 years old when she met her future husband at a dance in Warragul in November 1952. Mr Haysom was already in the navy. They were engaged in August 1953. Mr Haysom went to Korea in late October 1953. They married on 21 August 1954 after Mr Haysom had returned from Korea. Their three children were born in 1955, 1957 and 1959 respectively.
18. Mrs Haysom stated that Mr Haysom was a light smoker when they met. He smoked tailor-made and roll-your-own cigarettes. She stated that on his return from Korea, he was smoking more heavily. In her statement, she said that he smoked an average of 15 to 20 cigarettes a day after returning from Korea. He also started having the occasional cigar from about the mid-1970s.
19. In oral evidence Mrs Haysom said that her husband stopped smoking cigarettes around 1986, after a holiday in Singapore, because he decided that cigarettes had become too expensive. She said that he still smoked cigars after giving up cigarettes. Mrs Haysom recalled that the last time she saw him smoking was in about 1990 when he smoked his last rum-tipped cigar. She said that he liked to have one or two cigars at night with a liqueur.
20. Mrs Haysom stated that she was aware that her husband had advised the Commission in a form signed on 20 March 2001 that he was a “non-smoker” all my life. That form had been lodged in relation to an unsuccessful claim to have diabetes mellitus recognised as a war-caused condition. Mrs Haysom said that his statement was untrue. She indicated that she still had the cigarette stand that her mother had given to Mr Haysom as a 35th birthday present. She stated that it was her view that Mr Haysom stated that he was a non-smoker to give the impression that he led a healthy lifestyle. She said that she had challenged him about what he had put in the form but he told her it was his business and not hers.
21. Under cross-examination, Mrs Haysom said that it was difficult to remember exactly how many cigarettes her husband smoked in the 1960s and 1970s but she believed it had been around 10 to 15 cigarettes per day. She pointed out that she was not with him all the time so could not know exactly how much he smoked. Mrs Haysom said that Mr Haysom’s father and brother smoked. She confirmed that Mr Haysom smoked before he joined the navy. She said that she was aware that he had access to duty-free cigarettes in the navy.
22. Mrs Haysom stated that Mr Haysom used to drink a small amount of alcohol socially when they met but he was not a regular drinker until he came back from Korea. She said that after they married, while Mr Haysom was still in the navy, they lived opposite a hotel. She said that her husband was in the habit of having a drink there every day when he was at home. She stated that he would go to the pub at about 4.30, come home for tea about 7.30 and then go back until closing…at 10pm, as they had late closing in NSW.
23. After Mr Haysom’s discharge in 1956, the family moved to Longwarry North in Victoria, where her husband obtained work with Heinz at Bunyip. Mr Haysom subsequently joined the railways, initially at Bunyip. Mrs Haysom indicated that he drank at the Bunyip Hotel after work and at the football where he was actively involved, initially as a player and later as an official. In mid-1958, Mr Haysom was transferred to East Gippsland by the railways and they moved into a railways’ house in Fernbank. Mrs Haysom stated that her husband drank at the nearby hotel and brought beer home to consume over the weekend.
24. In December 1959 they returned to Longwarry North, where Mr Haysom drove a family-owned milk truck and also milked cows for his father. Mrs Haysom said that he then frequented a hotel in Drouin and brought beer home for weekend consumption. In the early 1970s Mr and Mrs Haysom purchased a hardware shop in Drouin but sold it about three years later because it was not doing very well. Mr Haysom had joined the local Lions Club and, according to Mrs Haysom, developed a taste for spirits. After selling the hardware business, Mr Haysom worked full time as a salesman for two brick companies and then in car sales. He retired around 1992.
25. Mrs Haysom said that her husband had given incorrect information to his doctors about his level of drinking, underestimating his consumption. Mrs Haysom said that her husband drank alcohol regularly until hospitalised in November 2006. In a signed response to a Department of Veterans’ Affairs (DVA) questionnaire dated 16 May 2007, concerning her late husband’s alcohol consumption, Mrs Haysom stated that her husband had begun to consume alcohol on a regular basis in 1950. She stated that he had done so because of Stress [and] Availability of alcohol. She stated that at that time (presumably 1950) he drank beer two or three times per week. Mrs Haysom said that she did not fill out the form, although she signed it. She conceded that she did not know how much Mr Haysom consumed on average at that time, as they only met in 1952 and married in 1954.
26. Mrs Haysom said that she was aware of how much alcohol was in a standard drink as she had worked at a hotel from 1980 to 1995.
HYPERTENSION
27. There is evidence before the Tribunal indicating that Mr Haysom’s alcohol consumption could have contributed to his death from hypertension and other causes. The Tribunal determines there is material that points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Haysom. Therefore, the first step from Deledio is satisfied.
28. As indicated earlier, there is an SoP concerning hypertension applicable to Mr Haysom’s kind of death from hypertension, namely Instrument No 35 of 2003. Therefore, the second Deledio step is satisfied.
29. Of the factors set out in paragraph 5 of the SoP concerning hypertension that must as a minimum exist before a reasonable hypothesis can be raised connecting death from hypertension with war service, the parties and the Tribunal concur that there is only one factor possibly relevant to Mr Haysom’s service, namely his level of alcohol consumption. Having considered all the material, including the evidence from Mrs Haysom, the Tribunal considers that the material points to a hypothesis linking Mr Haysom’s operational service with hypertension, which was one of the causes of his death. The third step of Deledio is therefore satisfied.
30. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death from hypertension was connected with his operational service within the meaning of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
31. Hypertension is defined in paragraph 2(b) of the SoP as follows:
For the purposes of this Statement of Principles, “hypertension” means 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
….
32. Naval medical records indicate that towards the end of his naval service in 1956, Mr Haysom’s blood pressure reading was Systolic 140 mm. Diastolic 70mm. The Commission submitted that this indicated that the clinical onset of hypertension was during Mr Haysom’s service. Mrs Haysom submitted that this was a one-off reading that did not indicate her husband was already suffering from hypertension at that time. Mr Haysom’s general practitioner, Dr D S Dhillon, indicated in a questionnaire he completed on 9 June 2007 that the clinical onset of hypertension was on 26 October 2001 with the additional words exact date unknown.
33. There is no definition of the term clinical onset in the SoP concerning hypertension or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelious [2002] FCA 750 and other, earlier cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP. Alternatively, clinical onset of a condition was said to occur when the condition is actually found on diagnostic testing, regardless of the extent of symptoms. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said, at paragraph 23:
…
[that clinical onset occurs], either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
In Re Witten and Repatriation Commission (1998) 54 ALD 605 the Tribunal concluded, at paragraph 19, that:
…A disorder may not, in fact, have been diagnosed during the relevant period … with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period…
34. The earliest available evidence of a medical practitioner’s diagnosis of hypertension is Dr Dhillon’s diagnosis on 26 October 2001. The Tribunal does not accept that a single blood pressure reading at the time of Mr Haysom’s discharge from the navy qualifies as the date of clinical onset of hypertension. If the date given by Dr Dhillon is to be taken as the actual date of clinical onset, despite his qualifying comment exact date unknown, Mr Haysom would have had to have consumed at least 300 grams of alcohol per week for at least the six months immediately before 26 October 2001 and continued to consume alcohol at that level. Furthermore, Mr Haysom’s level of alcohol consumption would have had to be connected somehow to his service in Korean waters.
35. The evidence as to the amount of alcohol consumed by Mr Haysom is inconsistent. In a questionnaire completed by Dr Dhillon on 9 June 2007, it was reported that there was no history of alcohol abuse or dependence. On 4 December 2007 Dr Dhillon stated that the history he had been given indicated that Mr Haysom used to consume alcohol daily at the rate of 1-2 drinks per day. On 16 May 2007, Mrs Haysom stated that her husband had consumed alcohol every day at the rate of 6 standard drinks per day until six weeks before his death. There is no specific evidence as to how much Mr Haysom was drinking in the six months prior to the clinical onset of hypertension.
36. The available and contradictory evidence makes it difficult for the Tribunal to make a definite finding about Mr Haysom’s level of drinking at the time of the clinical onset of hypertension. However, even if he had been drinking at the level set out in the SoP on hypertension, Mr Haysom’s consumption would need to be related to his eligible service for his widow’s claim to succeed.
37. The Tribunal accepts that Mr Haysom was a light drinker when he joined the navy at the age of twenty and that he drank more heavily during the latter parts of his service. It is not clear at what stage of his naval service he began to drink more heavily. There is no evidence available as to why he commenced drinking more heavily or frequented the hotel after work.
38. The Tribunal notes that there was no evidence from Mr Haysom’s three children concerning their father’s drinking or smoking. The Tribunal accepts Mrs Haysom’s evidence that her husband drank more after his return from Korean waters. However, that does not necessarily mean that his drinking was the result of his naval service in Korean waters. Mr and Mrs Haysom married after his operational service. Hence, it was not until after their marriage that Mrs Haysom was able to observe her husband’s day-to-day habits. It may well have been that as her fiancé, Mr Haysom only drank lightly when they shared social outings.
39. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 the High Court stated:
… if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.
40. Mrs Haysom said that her husband did not talk about his naval service much. She said that she knew he worked on the flight deck of the aircraft carrier. Mrs Haysom provided letters that her then fiancé had written to her while in Korean waters which included snippets concerning his duties and experiences on HMAS Sydney. Events he described included a death by suicide of a sailor after learning his fiancée had been killed in a car accident and pilot deaths as a result of air crashes. However, these incidents are cited as events of interest rather than being events that had a great impact on Mr Haysom. They were incidents that did not take place in the context of an attack by enemy forces or the like. There is nothing in the letters to indicate that there was any particular incident that caused Mr Haysom to increase his alcohol consumption.
41. The Tribunal is not satisfied that there is anything but a temporal link between Mr Haysom’s alcohol consumption and his eligible war service. It is not reasonably satisfied on the available evidence that there is a causal connection between his alcohol consumption and his eligible war service. The Tribunal is satisfied that none of the other alternative criteria in the SoP are relevant to Mr Haysom. Therefore, the Tribunal is not satisfied that step 4 of Deledio has been met. The Tribunal is not satisfied that Mr Haysom’s death from hypertension was related to his operational service.
DIABETES MELLITUS
42. In 2001 Mr Haysom applied to the Commission for recognition of his condition of diabetes mellitus, which appears to have been diagnosed in 1996, as a disability related to his eligible service. He was unsuccessful. However, the Tribunal needs to reassess his diabetes mellitus in light of his widow’s claim.
43. As indicated above, the only possible relevant factor in Instrument No 11 of 2004 linking Mr Haysom’s diabetes mellitus with his service was Mr Haysom’s smoking.
44. There is evidence before the Tribunal indicating that Mr Haysom’s tobacco consumption could have contributed to his death from diabetes mellitus and other causes. The Tribunal determines there is material that points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Haysom. Therefore, the first step from Deledio is satisfied.
45. There is an SoP applicable to Mr Haysom’s kind of death from diabetes mellitus, namely Instrument No 11 of 2004. Therefore, the second Deledio step is satisfied
46. Based on Mr Haysom’s medical and social history, the parties and the Tribunal agree that the only relevant possible factor is:
(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
47. Of the factors set out in paragraph 5 of Instrument No 11 of 2004 that must as a minimum exist before a reasonable hypothesis can be raised connecting death from diabetes mellitus with war service, the parties and the Tribunal agree that there is only one factor possibly relevant to Mr Haysom’s service. That is the level of his smoking before clinical onset of the disease. Having considered the evidence from Mrs Haysom, the Tribunal considers that the material points to a hypothesis linking Mr Haysom’s operational service with diabetes mellitus, which was one of the causes of his death. The third step of Deledio is therefore satisfied.
48. In relation to the fourth step from Deledio, there is conflict and doubt about Mr Haysom’s level of smoking. In the claim lodged in 2001 concerning diabetes mellitus, Mr Haysom stated that he was a “non smoker”; and on one part of the form has stated that he was a non-smoker all my life. If he had been a smoker at the level required in the SoP (the relevant SoP at the time also contained the smoking provision in the same terms as the current SoP), it seems somewhat odd that he would not provide information that would have helped him achieve a successful outcome. There is also the evidentiary difficulty that there is no corroborating evidence before the Tribunal as to which medical practitioner diagnosed diabetes mellitus.
49. Mrs Haysom has given evidence that her husband stopped smoking cigarettes in 1986 following a trip overseas because of their cost. Hence, there is some evidence that Mr Haysom smoked until 1986. Mrs Haysom said that her husband smoked cigars from time to time after that, particularly in the evening with a drink. However, that smoking did not meet the level required in the SoP. The clinical onset of diabetes mellitus was around 10 years after the date he gave up smoking cigarettes according to Mrs Haysom’s recollection. There is no exact date of diagnosis available to the Tribunal. Neither are the dates of the holiday to Singapore that prompted Mr Haysom to give up smoking cigarettes. Mrs Haysom gave evidence that her husband was smoking when they met before his service in Korea. She was unable to provide evidence as to how much he smoked then, as they saw each other only on social occasions.
50. There is no evidence to indicate that Mr Haysom’s operational service caused him to increase his level of smoking. The only evidence from Mr Haysom before his death is an assertion in 2001 that he was a non-smoker. The letters that he sent to his fiancée during his operational service do not indicate that his experiences during operational service led to an increase in his smoking. Mrs Haysom conceded that she could not give an accurate estimate of Mr Haysom’s smoking on joining the navy and before his operational service as they did not live together until after his operational service. She also conceded that she did not see him during the day while he was at work, football events etc prior to his cessation of cigarette smoking in 1986 or thereabouts.
51. The Tribunal is satisfied that none of the other alternative criteria in the SoP are relevant to Mr Haysom. The Tribunal is satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the veteran’s death from diabetes mellitus was connected with his operational service, and therefore, the fourth step of Deledio is not met. The Tribunal therefore finds that Mr Haysom’s death from diabetes mellitus is not related to his operational service.
CEREBROVASCULAR ACCIDENT
52. The Tribunal has before it written and oral evidence that Mr Haysom’s smoking, drinking, diabetes mellitus and hypertension could have contributed to his death from a cerebral infarct. The Tribunal determines that there is material that points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Haysom. Therefore, the first step from Deledio is satisfied.
53. As indicated earlier, there is an SoP applicable to Mr Haysom’s kind of death from cerebral infarct, namely Instrument No 51 of 2006 concerning Cerebrovascular Accident. Therefore, the second Deledio step is satisfied.
54. Of the factors set out in paragraph 6 of Instrument No 51 of 2006 that must as a minimum exist before a reasonable hypothesis can be raised connecting death from cerebrovascular accident with war service, the parties and the Tribunal concur that there were four factors possibly relevant to Mr Haysom’s service, namely his level of smoking, his consumption of alcohol, his hypertension and diabetes mellitus. Having considered all the material, including the evidence from Mrs Haysom, the Tribunal considers that the material points to a hypothesis linking Mr Haysom’s operational service with the cerebrovascular accident, which was one of the causes of his death. The third step of Deledio is therefore satisfied.
55. The clinical onset of Mr Haysom’s cerebrovascular accident was three days before his death. At that time, he was suffering from hypertension and diabetes mellitus, which were recorded as also being the causes of his death. However, as indicated above, the Tribunal is not satisfied that those conditions were related to Mr Haysom’s operational service.
56. The clinical onset of the cerebrovascular accident was in December 2006. In terms of the smoking aspects of Instrument No 51 of 2006, the Tribunal is satisfied beyond reasonable doubt that Mr Haysom did not smoke at least five cigarettes per day or the equivalent tobacco products within 10 years of the clinical onset of the cerebrovascular accident (pursuant to factor 6(o)(ii)(A)). As indicated above, Mr Haysom stated he was a non-smoker. Mrs Haysom gave evidence that he stopped smoking cigarettes in 1986, some 20 years prior to the cerebrovascular accident and ceased his cigar smoking in about 1990, around 16 years before the clinical onset.
57. In terms of alcohol consumption, the SoP allows for an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident (pursuant to factor 6(f). There is no evidence before the Tribunal that a person suffering from the multiplicity of conditions that Mr Haysom endured would be drinking at that level during the year prior to his death. Furthermore, as indicated earlier, the Tribunal is not satisfied that Mr Haysom’s alcohol consumption was related to his operational service in anything beyond a temporal connection.
58. The Tribunal is satisfied that none of the other alternative criteria in Instrument No 51 of 2006 are relevant to Mr Haysom. Therefore, the fourth Deledio step is not met. Accordingly, the Tribunal is satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the veteran’s death from cerebrovascular accident was connected with his operational service.
DECISION
59. The Tribunal affirms the decision under review.
I certify that the fifty-nine [59] preceding paragraphs are a true copy of the reasons for the decision of:
Ms Regina Perton, Member
Signed: Dianne Eva
Clerk
Date of hearing: 4 June 2009
Date of decision: 6 November 2009Solicitor for applicant: Mr P J Liefman
Counsel for respondent: Mr G Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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