Hopkins and Repatriation Commission
[2014] AATA 606
•27 August 2014
[2014] AATA 606
Division VETERANS' APPEALS DIVISION File Number
2013/4267
Re
Kenneth Hopkins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 27 August 2014 Place Brisbane The Tribunal affirms the decision under review.
............................[Sgd]............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Operational service and defence service with Australian Regular Army – Application of Statements of Principles – Diagnosis of Alzheimer-type dementia – Clinical onset – Reasonable hypothesis of relevant relationship to service raised – Not satisfied beyond reasonable doubt that Alzheimer-type dementia war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 68, 119, 120, 120A, 126
CASES
Dunlop v Repatriation Commission [2002] FCA 1400
Fogarty v Repatriation Commission [2003] FCAFC 136
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331.
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144Sloan v Repatriation Commission [2012] FCA 1079
SECONDARY MATERIALS
Statements of Principles concerning Alzheimer-type dementia No. 22 of 2010 as amended by Amending Statement of Principles No. 17 of 2014.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
27 August 2014
BACKGROUND
On 18 September 2012, Audrey Hopkins was the wife of Kenneth Hopkins
(“the veteran”) when she lodged, on the veteran’s behalf, a claim in accordance with
s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission for “Alzheimer–type dementia”. She contended that this related to his service in the Australian Regular Army (“the army”). On 12 February 2013, a delegate of the Repatriation Commission rejected that claim. On 6 June 2013, the
Veterans’ Review Board (“the Board”) affirmed that decision. On 10 December 2013, the veteran died and, in accordance with s 126 of the Act, Mrs Hopkins has continued the claim as his legal personal representative.
SERVICE and ISSUES
The veteran served in the army from 30 May 1952 until 4 April 1975. This included the period from 13 November 1968 until 26 November 1969 of eligible war service in the form of operational service in South Vietnam under ss 7 and 6C of the Act. It also included the period of defence service, in accordance with s 68 of the Act, from
7 December 1972 until he was discharged. It is common ground that no issues arise in relation to the veteran’s defence service.
Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered”. The standard of proof to be used in determining diagnostic matters is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in ss 120(1) and (3) of the Act. These read:
[1] Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]-[35]; (2003) 37 AAR 363 at 373.
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the
operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
The application of s 120(1) of the Act is affected by the terms of s 120A thereof which requires that consideration be given to any relevant Statement of Principles that has been published by the Repatriation Medical Authority.
The issue for determination is whether the veteran’s Alzheimer–type dementia is a
war-caused condition.
EVIDENCE
Mrs Hopkins
In the claim form it was noted that, because of the veteran’s Alzheimer-type dementia, the veteran became bedridden and had no comprehension of anything. It was contended that this condition developed because of his smoking habit which was attributed to his service in Vietnam in 1968 and 1969. It was noted that, from 1981 until 1986, he smoked about 10 cigarettes per day, supplemented with pipe smoking of 2 packets of tobacco each week, until 1987. It is also noted that the veteran continued to smoke about
10 cigarettes per day until 1990 when he ceased smoking. In a smoking questionnaire completed on 12 March 2013, it was noted that the veteran commenced smoking when he joined the British Army and increased to 30 cigarettes per day in Vietnam in 1968. Cessation was noted to be in early to mid-1991. Other documents which refer to the veteran’s smoking were signed by Mrs Hopkins on 15 January 1998, 14 September 2012 and 12 March 2013. In the second of those, it was declared that the veteran ceased smoking “towards [the] end of 1990”. While those various document were signed by
Mrs Hopkins, she agreed in her oral evidence that she had not completed the details contained therein. In her evidence, Mrs Hopkins was referred to statements by the veteran that he had ceased smoking in the 1980s. She said that this was not correct and she confirmed that he ceased smoking in mid-1991.
Mrs Hopkins described the veteran as a keen golfer who carried administrative responsibilities at the Terranora Golf Club until 1991 when he ceased these due to his health problems. He continued to play golf over a reduced number of holes when assisted by friends. She said that the veteran had difficulties driving and would get lost at times, even when he was out walking. She and the veteran travelled to the United Kingdom in 1989 and she saw those tendencies occurring there. She also recalled that the veteran purchased duty free cigarettes on return to Australia after that trip.
Mrs Hopkins and the veteran were married in 1953, having met in the previous year on board a ship bringing them to Australia. She described him as a light smoker at that time but as a heavy smoker after he returned from Vietnam. She also said that the veteran’s smoking levels increased in the last two or three years of his service because his income increased and he was more able to afford cigarettes. While in the army, the veteran and Mrs Hopkins lived in Sydney. After his army discharge in 1975, the veteran worked in the private sector for some years, although Mrs Hopkins was uncertain of the duration of this, providing estimates of three, four and five years. They moved to the Gold Coast sometime after he ceased that work and Mrs Hopkins variously described the year of that move as 1982, 1986 and 1988. She said that, after moving to the Gold Coast, she assumed responsibility for purchasing the veteran’s smoking supplies as part of her weekly shopping routine. She said that she purchased a carton of approximately 300 cigarettes and a couple of packets of pipe tobacco each week until 1990. When giving evidence of the dates of cessation of the veteran’s smoking and the dates of moving from Sydney to the Gold Coast, Mrs Hopkins declared that she was confused.
Mrs Hopkins attended the Brisbane reunion of the 9th Battalion in Brisbane. She could not recall the year that this was held. At the reunion she read, for the first time, a short note in a book dealing with the history of the battalion in Vietnam. It referred to an incident where the veteran was struck by lightning (“the lightning incident”) while operating a switch board in Vietnam. She said that she had no knowledge of this until then. On the other hand, she had been aware of an incident during the veteran’s service in 1954 when he suffered a head injury and was rendered unconscious.
Barry Richard Maxwell
Mr Maxwell completed a statement on 31 May 2014 and gave evidence. He served with the veteran in Vietnam. He was aware of the lightning incident because he was involved in re-supplying the fire support base where the veteran was serving at the time. He was at the base on the day following the incident and heard about it from the veteran and from others who were aware of it. He was told that the usual switch board operator took a break for about 30 minutes and that the veteran was attending the switch board in his absence when the lightning hit the switch board and rendered the veteran unconscious. He assumed that the veteran had received medical treatment after the incident.
Mr Maxwell noted an initial uncharacteristic hesitancy in the veteran’s speech after the incident, but also noted that this subsequently returned to normal.
Mr Maxwell advised that, like himself, the veteran was a smoker. He has seen the veteran a few times since they left the army. This was on the occasions of battalion reunions. He recalled that he attended one of these in Canberra, and others in Sydney and Brisbane. The event in Canberra was in 1992 but he could not recall the years in which the other reunions were held. The veteran was in attendance on those occasions and Mr Maxwell understood that the veteran was smoking on those occasions. He said that he had brought some cigars to hand around to those attending and he recalled that the veteran accepted this offer. He also observed that the veteran appeared to be forgetful of some things and, in his statement, he wrote that he “started exhibiting symptoms of dementia from around 1991”. He observed that it was still common for men to be smoking at the times of those reunions. He also said in his evidence that he had presumed that the veteran was smoking at the Brisbane and Sydney reunions.
Other evidence
A Medical History Sheet, completed on 11 October 1972, noted that the veteran served in the British Army from 1946 until 1948 and that he served in Vietnam as a Company Sergeant Major. It was recorded that he was smoking 20 cigarettes per day when the document was completed and also referred to the following incident in Vietnam:
Lightning hit the switch board he was using – KO’d – “Fuzzy head” after this but only in hospital overnight.
In an earlier claim form, dated 15 January 1998, the veteran advised that he started smoking in the British forces but only became a heavy smoker in Vietnam and continued in that way until he experienced health problems. On the same day, the veteran completed a smoking questionnaire in which he again declared that he started smoking in the Royal Marines at the level of 2-3 cigarettes per day, or about two ounces of tobacco per week “depending on what [he] could afford”. He wrote that he did so because of the pressure of being in the service, because other servicemen did so and because he was serving during war time. He also wrote that he increased his smoking in Vietnam to 30 cigarettes per day because of the stress of service in Vietnam and ceased smoking permanently in approximately August 1983.
In a Claimant Report, dated 9 February 1998, the veteran referred to the lightning incident and added that his head struck the metal floor as a result. He wrote that he was taken by helicopter to the base hospital where he was held overnight. A Discharge History Questionnaire, dated 18 February 1975, recorded a “severe head injury – concussion” as having occurred in 1954 and the accompanying notation reads: “no trouble since”.
In evidence was an extract from “9th Battalion RAR Vietnam Tour Duty 1968-1969 On Active Service”. It included the following reference:
CSM being found stunned and lying on the floor of the Bn CP switch-board after an electric storm. He plugged into an incoming call just as lightning struck that line! When the operator returned he said to the CSM, “Gee, Sir, I thought you could operate the bloody thing – not wreck it.” The CSM’s reply is not recorded.
Tendered in evidence was a copy of the Board’s decision in this matter. It includes the following extract from a report by physician, Dr Frank Johnson, which was referred to during the Tribunal’s hearing:
In October 1969 the field telephone into which [the veteran] was speaking was struck by lightning and he was thrown across the room against the steel wall with one leg doubled under him. He was treated in hospital in Nu [sic] Dat but discharged the next day. He had slight burns to the elbows and backs of the thighs where he came into contact with metal furniture at the time of the shock.
Medical Evidence
Neurosurgeon Dr Leong Tan completed a report on 2 September 1997. He viewed the results of an MRI scan conducted on 22 August 1997. Dr Tan noted a previous diagnosis of Alzheimer-type disease and that the veteran was awaiting a nursing home placement. His report was concerned with the veteran’s haemorrhage but he was unable to confirm its cause. The MRI report referred to an Alzheimer study in the veteran’s history.
In evidence were reports from the veteran’s general practitioner, Dr Ian Clark, dated
3 September 1986, 21 January 1998, 12 February 1998, 7 March 2013 and
12 November 2013. He also gave oral evidence. The first report related to a claim by the veteran for osteoarthritis of his hands and knees as well as Dupuytren’s contracture.
Dr Clark took a smoking history from the veteran. He wrote:
Non smoker Ex 5 yrs ago – pipe smoker
The second report is a document in which Dr Clark made diagnoses of intracerebral haemorrhage and Alzheimer-type dementia. It was completed as part of the veteran’s earlier claim in 1998 for acceptance of those two conditions. For the intracerebral haemorrhage, he wrote that the condition had left the veteran with “no residual defect” and that he had “made [a] full recovery”. For the Alzheimer-type dementia, he wrote:
Has known Alzheimers in early stage in [sic] assessment of MRI Scan 22-8-97 showed cortical and subcortical haemosederin deposits suggesting old ?post traumatic haemorrhage 1969-7 [sic].
In his evidence, Dr Clark confirmed that this opinion was based on the MRI report of
22 August 1997.
The third of Dr Clark’s reports also related to the 1998 claim made by the veteran and purported to be about his intracerebral haemorrhage. As noted above, three weeks earlier Dr Clark had described the veteran as having no residual defects from intracerebral haemorrhage. He made the same observation in his third report when asked if the veteran suffered any symptoms from intracerebral haemorrhage and Dr Clark answered: “no”. Further, he also confirmed that the veteran’s Alzheimer-type dementia contributed to the affects he detailed in his report. He referred to the lightning incident, noting that the veteran had been unconscious from hitting his head on the floor, that an X-ray had revealed no skull fracture and that he suffered headaches for weeks afterwards. Dr Clark described the veteran as having a poor memory and wrote that that he needed written notes and check lists, prompting to attend appointments, an attendant when he was driving in unfamiliar areas and supervision by his spouse when driving. He wrote that he did not need regular supervision to avoid personal injury, or constant supervision at home or institutionalisation. Dr Clark wrote that the veteran’s aural and written comprehension was only mildly affected, and only when tired, upset or with rapid changes in topic.
Dr Clark advised that the veteran had no impairment in oral expression or written expression, provided it was for social rather than business purposes.
In his fourth report, Dr Clark wrote that the veteran “began to show signs of Alzheimer’s disease in 1990”. In his final report, he wrote that the diagnostic criteria
A(i) and A(2)(ii), (iii) and (iv) in the Statement of Principles for Alzheimer-type dementia were met since 1990.
In his evidence Dr Clark advised that he had not retained clinical documentation from the 1990s and said that he could not recall any information about the veteran being struck by lightning. He agreed that he had relied on Dr Tan’s report in giving 1990 as the year of clinical onset of the veteran’s Alzheimer-type dementia. He also confirmed that, in his diagnostic report on 21 January 1998, he referred to it as being at an early stage.
Departmental Medical Officer, Dr J Smeaton, completed a file note on 19 February 1998. She was responding to a request concerning the veteran’s claim for intracerebral haemorrhage and the relevance to that of the lightning incident. No such relationship is described in Dr Smeaton’s report.
Dr Peter Vidgen completed a section of the claim form. He wrote that there was a formal diagnosis of Alzheimer–type dementia by neurologist Dr Corbett in 1996 and that the veteran had symptomatology with memory loss since 1991. In a medical report on
4 January 2013, Dr Vidgen wrote that the clinical onset of the veteran’s Alzheimer-type dementia was in 1996.
SUBMISSIONS
For Mrs Hopkins, Mr Brian O’Neill submitted that from the evidence disclosed, by 1990, the veteran met the diagnostic criteria for Alzheimer-type dementia in the
Statement of Principles concerning Alzheimer-type Dementia No. 22 of 2010
(“the SoP”) and that his loss of consciousness for at least 30 minutes after the lightning incident was sufficient to establish the factor in cl 6(a) in the SoP. He submitted that, to the extent that there was any paucity of evidence concerning the lightning incident, regard should be had to s 119 of the Act. He also submitted that the veteran’s heavy smoking history met the quantity required by the SoP, was related to his service in Vietnam and continued until 1991. On that basis, he submitted that the factor at cl 6(b) in the SoP was also met. He submitted that I could not be satisfied beyond reasonable doubt that the claimed condition was not war-caused and that the decision under review ought to be set aside.
For the respondent, Mr Adrian Crowe referred to the unsatisfactory state of the evidence in this matter. In particular, this was the case with the absence of direct evidence of the details relating to the lightning incident, the varying references to the timing of the cessation of the veteran’s smoking, and the estimates of the clinical onset of the veteran’s Alzheimer-type dementia. He noted the reference by Mr O’Neill to s 119 of the Act and submitted that this provision does not allow inferences to be drawn where evidence does not exist. He submitted that there was no evidence which pointed to the veteran being unconscious for the 30 minute period required by the factor at cl 6(a) in the SoP and that any hypothesis relying on that incident is not reasonable.
In relation to smoking, Mr Crowe conceded that the veteran had smoked the quantity of cigarettes in the factor at cl 6(b) of the SoP and that that the required amount was attributable to the veteran’s operational service. Mr Crowe submitted that there was no reason to reject the veteran’s statement to Dr Clark that he ceased smoking five years before Dr Clark’s 1986 report, or his statement in his 1998 claim form that he ceased smoking in approximately 1983. He submitted that the clinical onset of Alzheimer-type dementia was not before the report of Dr Tan in 1997 which relied on the MRI conducted in August of that year. He noted the inconsistencies in Dr Clark’s evidence about the clinical onset of Alzheimer-type dementia and submitted that his evidence pointed to that as being in 1997. Mr Crowe submitted that the cessation of smoking was more than five years before that clinical onset of Alzheimer-type dementia and that, accordingly, any hypothesis based on smoking was not reasonable. He submitted that, as no reasonable hypothesis consistent with the SoP was raised, I should determine that the veteran’s Alzheimer-type dementia was not war-caused and that the decision under review ought to be affirmed.
PROCEDURE
The procedure for determining whether or not a particular condition arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[2]
(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused... 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.Step 1: the hypotheses
[2] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.
Two hypotheses were advanced by Mr O’Neill. One, the “smoking hypothesis”, was that the veteran had a history of service-related smoking of more than 20 pack years until mid-1991 which was within five years of the clinical onset of Alzheimer-type dementia. The second, the “lightning incident” hypothesis, involved an incident where the veteran received a shock from lightning which rendered him unconscious for a period of at least 30 minutes.
Step 2: Statement of Principles
The SoP[3] gives the following diagnostic criteria for Alzheimer-type dementia:
[3] As amended by Amendment SoP No. 17 of 2014, in a manner not relevant to these proceedings.
3. …
(b) For the purposes of this Statement of Principles, "Alzheimer-type dementia" means a central neurodegenerative disorder characterised histopathologically by diffuse atrophy throughout the cerebral cortex with senile plaques and neurofibrillary tangles; and meeting the following diagnostic criteria:
A. The development of multiple cognitive deficits manifested by:
(1) memory impairment (impaired ability to learn new information or to recall previously learned information); and
(2) one (or more) of the following cognitive disturbances:
(i) aphasia (language disturbance);
(ii) apraxia (impaired ability to carry out motor activities despite intact motor function);
(iii) agnosia (failure to recognise or identify objects despite intact sensory function); or
(iv) disturbance in executive functioning (i.e., planning, organising, sequencing, abstracting).
B. The cognitive deficits in Criteria A(1) and A(2) each cause significant impairment in social or occupational functioning and represent a significant decline from a previous level of functioning.
C. The course is characterised by gradual onset and continuing cognitive decline.
D. The cognitive deficits in Criteria A(1) and A(2) are not primarily due to any of the following:
(1) other central nervous system conditions that cause progressive deficits in memory and cognition (e.g., cerebrovascular disease, Parkinson’s disease, Huntington’s disease, subdural
haematoma, normal pressure hydrocephalus, brain tumour);
(2) systemic conditions that are known to cause non- Alzheimer-type dementia (e.g., hypothyroidism, vitamin B12 or folic acid deficiency, niacin deficiency, hypercalcaemia, neurosyphilis, HIV infection); or
(3) substance-induced conditions.
E. The deficits do not occur exclusively during the course of a delirium.
F. This definition includes dementia with Lewy bodies.
It also sets out factors of causation and associated definitions which, in so far as relevant in this matter, read:
6. …
(a) having moderate to severe cerebral trauma at least 10 years before the clinical onset of Alzheimer-type dementia; or
(b) smoking at least 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of Alzheimer-type dementia and where smoking has ceased, the clinical onset of Alzheimer- type dementia has occurred within five years of cessation; or
9. …
"moderate to severe cerebral trauma" means structural injury or physiological disruption of brain function as a result of external force, manifested by at least one of the following clinical features immediately following the event:
(a) loss of consciousness lasting at least 30 minutes or posttraumatic anterograde amnesia lasting at least 24 hours;
(b) leakage of cerebrospinal fluid;
(c) injury involving penetration of the dura mater;
(d) seizures;
(e) intracranial abnormality, including:
(i) intracranial haemorrhage;
(ii) intracranial haematoma;
(iii) cerebral contusion;
(iv) hydrocephaly; or
(v) diffuse axonal injury; or
(f) a glasgow coma scale score of 12 or less.
In this definition, external force includes blunt trauma; acceleration or
deceleration forces; blast force; or a foreign body penetrating the brain;
"pack-years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack-year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor made cigarettes equates to 7300 Page 6 of 6 of Instrument No. 22 of 2010 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Step 3: Reasonableness of hypotheses
An hypothesis will be reasonable if it is consistent with the “template” to be found in the SoP. This requires that there be material before me which points to the elements of a relevant factor in the SoP.
The smoking hypothesis
This hypothesis is that the veteran dramatically increased his smoking due to his service in Vietnam to smoke a total of at least 20 pack-years before the clinical onset of Alzheimer-type dementia or if smoking was ceased, the clinical onset occurred within five years of cessation. I have noted Mr Crowe’s concessions that the material before me points to the increase in smoking by at least 20 pack years and to a causal relationship between that increase and the veteran’s operational service.
There is conflicting evidence concerning the quantification and cessation of the veteran’s smoking. Mrs Hopkins’ statements about this have not been entirely consistent, variously describing that he stopped smoking in 1990, towards the end of 1990, early to mid-1991 and in mid-1991. She also said that she was responsible for purchasing his cigarettes after they moved from Sydney to the Gold Coast until he ceased smoking. Her evidence was that she purchased a carton of 300 cigarettes as well as two packets of pipe tobacco per week for him. In the claim form, signed by Mrs Hopkins, she wrote that he was smoking 10 cigarettes per day and no pipe tobacco from 1987 to 1990. Mr Maxwell also referred to the veteran’s smoking habit in the army. He had met up with the veteran on only a few occasions since leaving the army. This was at battalion reunions. His recollection of those events was quite vague in that he could remember the year of only the Canberra event, but not the Sydney of Brisbane events or even if they pre or post-dated the Canberra event. He said that the veteran accepted a cigar that was offered to him and he agreed that his recollections were based on a presumption that the veteran had been smoking at the reunions.
The clearest evidence of the veteran’s smoking is that given by him in 1972, in 1998 and in his early consultations with Dr Clark. In 1972, after his war-related increase in smoking, he is recorded as being at the level of 20 per day, which is substantially less that the amount described by Mrs Hopkins in her cigarette purchases for the veteran[4] when living on the Gold Coast. In the documents provided at the time of his 1998 claim, the veteran advised that he ceased smoking in approximately 1983. The history taken from the veteran by Dr Clark in 1986 was that he had ceased smoking five years earlier.
[4] This was 300 cigarettes per week as well as two packets of pipe tobacco.
There is a clinical onset of a disease either when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor that the disease is present.[5] Mrs Hopkins described symptoms of Alzheimer-type dementia from 1998 and in the early 1990s. Dr Clark considered that the veteran satisfied the diagnostic criteria in 1990. However, his evidence is not consistent with that opinion. His report, dated 12 February 1998, though headed “intracerebral haemorrhage”, includes the statement that the veteran suffered no symptoms from that condition and that his detailed assessment included the effects of Alzheimer-type dementia. I note that the Board, in its deliberations, concluded that the symptoms detailed by Dr Clark in that third report were mainly associated with his Alzheimer-type dementia. I agree with that analysis. This is relevant because Dr Clark described the veteran’s limitations which would point to the absence of a definitive diagnosis of Alzheimer-type dementia at that time. For example, he was still driving a car in 1998.[6] Dr Vidgen identified a diagnosis in 1996 and adopted that year as constituting the clinical onset of Alzheimer-type dementia.
[5] See Lees v Repatriation Commission (2002) 125 FCR 331, Kaluza v Repatriation Commission [2010] FCA 1244 and Sloan v Repatriation Commission [2012] FCA 1079 at [11].
Even though there are many inconsistencies in the evidence about the veteran’s smoking and the clinical onset of Alzheimer-type dementia, there is some material which points to a cessation of smoking in 1991 and to a clinical onset in 1990. That material fits the template of cl 6(b) of the SoP and, accordingly, that smoking hypothesis is a reasonable one.
The lightning hypothesis
The lightning hypothesis requires material which points to the factor at cl 6(a) in the SoP. There must be material which points to moderate to severe cerebral trauma manifested by at least one of the clinical features listed in the SoP immediately following the trauma. The feature identified by Mr O’Neill was the loss of consciousness lasting at least 30 minutes.
The Medical History Sheet, of 11 October 1972, noted a lightning incident in Vietnam in which the veteran described himself as having been “KO’d” and as having a resultant “fuzzy head”. The extract from the 9th Battalion RAR book referred to the veteran being found “stunned and lying on the floor” but also points to the veteran not being unconscious at that time because the regular operator who found him conversed with the veteran as described in the extract.[7] The record taken by Dr Johnson is one where the veteran was thrown across the room against the steel wall. Dr Johnson noted that one leg doubled under the veteran, and he had slight burns to the elbows and backs of the thighs where he came into contact with metal furniture. Apart from the veteran’s reference to being “KO’d”, that material does not point to a loss of consciousness or to duration of that state for at least 30 minutes. Dr Clark referred to unconsciousness. However, that is evidently taken from a self-report by the veteran. Mr Maxwell referred to a 30 minute period but that was in respect of the period of absence of the usual operator rather than to any period of unconsciousness which, if it occurred, may have been early or late in that 30 minute absence. Mr Maxwell’s knowledge of the incident was gleaned from others and he also spoke to the veteran. There is no suggestion in Mr Maxwell’s evidence that the veteran advised him that he was unconscious for any particular period.
Mr O’Neill submitted that reliance should be placed on s 119 of the Act to infer that the veteran was unconscious for the requisite period. In so far as relevant, it reads:
119 Commission not bound by technicalities
(1)
…
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
There was no contention that attempts to locate other witnesses proved unsuccessful. Also, while no hospital records have been obtained, the medical history sheet of
11 October 1972 was completed less than three years after the veteran returned to Australia from Vietnam. The medical history sheet provides no guidance of the duration of any loss of consciousness that the veteran may have experienced. Dr Johnson’s report points to treatment for minor burns rather than anything associated with concussion. Clearly, the SoP is specific in that, for unconsciousness to result in Alzheimer-type dementia, it has to have been for the time stated. I do not see s 119(h) of the Act as a provision which enables the inference advanced by Mr O’Neill to be drawn.[8]
Mr O’Neill sought to hypothesise that the veteran’s Alzheimer-type dementia may have been linked to intracerebral haemorrhage suffered by the veteran in 1997. This was not identified in his statement of facts, issues and contentions or in the features listed in the definition of moderate to severe cerebral trauma in the SoP. There is no medical material pointing to any such relationship between the Alzheimer-type dementia and the intracerebral haemorrhage suffered by the veteran and Dr Smeaton did not indicate such a correlation in her file note. Also, the veteran’s claim for this condition was rejected by the respondent on the same date that his earlier claim for Alzheimer-type dementia was refused. This was on 27 February 1998. No review has been sought by the veteran or Mrs Hopkins in relation to intracerebral haemorrhage. It is a disability for which a relationship to the veteran’s service has been rejected.
The material before me does not point to a relationship between the veteran’s
Alzheimer-type dementia and having moderate to severe cerebral trauma as defined in the SoP. The material is not consistent with the factor (a) and, accordingly, the hypotheses raised by Mr O’Neill in relation to the lightning incident are not reasonable.
Step 4: Is Alzheimer-type dementia war-caused
What must be determined in this stage is whether I am satisfied beyond reasonable doubt that the veteran’s Alzheimer-type dementia was war-caused. Because the hypothesis concerning the lightning incident was not reasonable, I am satisfied beyond reasonable doubt that it was not war-caused by that means.
In relation to the smoking hypothesis, I am satisfied beyond reasonable doubt that the concessions about the veteran’s smoking as made by Mr Crowe were properly made. However, I am also satisfied beyond reasonable doubt that there are facts which are not consistent with the template in paragraph (b) of the SoP.
Mrs Hopkins’s gave inconsistent evidence about the cessation of the veteran’s smoking and also the level that he was smoking. She referred to his smoking 10 cigarettes per day from 1978 to 1990 but also that she was purchasing 300 cigarettes per week and
two ounces of pipe tobacco at that time. She said that she was confused about dates and that was demonstrated in her evidence. I am satisfied beyond reasonable doubt that her evidence is unreliable. I am also so satisfied in relation to the evidence of Mr Maxwell. He was extremely vague in recalling the times when he had seen the veteran after army service, and his concluding statement was that he had presumed the applicant was smoking at those times. His only positive contribution was that the applicant had accepted a cigar from him which may well have been merely an indulgence on a celebratory occasion. I accept that the veteran’s own statements about his cessation of smoking should be accepted. These were that he stopped smoking in the early 1980s.
The evidence of Dr Vidgen was that the veteran’s Alzheimer-type dementia had its clinical onset in 1996. While I accept that the veteran began to display some symptoms of the condition for some years before that, I do not accept Dr Clark’s opinion that the veteran met the diagnostic requirements of the condition in 1990. His conclusion to that effect is not consistent with the detailed summary he provided of the veteran’s capacities in his report of 12 February 1998. I am satisfied beyond reasonable doubt that the clinical onset of the veteran’s Alzheimer-type dementia was in 1996. That means that the veteran ceased smoking more than five years before the clinical onset of his
Alzheimer-type dementia and that the requirements of paragraph (b) of the SoP are not met.
I am satisfied beyond reasonable doubt that the veteran’s Alzheimer-type dementia is not war-caused.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ..............................[Sgd]..........................................
Associate
Dated 27 August 2014
Date of hearing 14 August 2014 Advocate for the Applicant Mr Brian O'Neill, RSL Tweed Heads & Coolangatta Sub-Branch
Solicitors for the Respondent Adrian Crowe, Department of Veterans' Affairs
[6] For other capabilities, see paragraph 20 (above).
[7] See paragraph 15 (above).
[8] See Repatriation Commission v Bey (1997) 79 FCR 364 at 373 and Dunlop v RepatriationCommission [2002] FCA 1400 at [52].
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