Hughes and Repatriation Commission

[2001] AATA 792

DECISION AND REASONS FOR DECISION [2001] AATA 792

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V00/641

VETERANS' APPEALS  DIVISION       )          
           Re      ALICE LOUISA HUGHES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer,     Senior Member Miss E A Shanahan, Member  

Date5 September 2001

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd)  Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – war widow's pension – whether the death of the veteran from respiratory failure, pneumonia and carcinoma of the prostate was war-caused – whether veteran's increased smoking habit service related - concession by respondent that veteran suffered chronic obstructive airways disease (COAD) - Tribunal not satisfied on the balance of probabilities that the veteran's death was attributable to COAD - decision affirmed
Veterans' Entitlements Act 1986 s 120B
Statement of Principles Instrument No. 74 of 1997

REASONS FOR DECISION

5 September 2001   Mrs Joan Dwyer,                 Senior Member Miss E A Shanahan, Member   

background

1. This is an application for review of a decision of the Repatriation Commission made 14 July 1999 which refused Mrs Hughes' claim for war widow's pension under the Veteran's Entitlements Act 1986 ("the Act").  The reason for rejection of the claim was that the death of her husband, Bernard Wyndham Cooper Hughes was not accepted as a war-caused death within the meaning of that term in s 8 of the Act.  The decision of the Repatriation Commission was affirmed by the Veteran's Review Board ("VRB") on 14 April 2000. 

2. Mr Liefman, a solicitor, appeared for Mrs Hughes. Mr Herman, an advocate with the Department of Veteran's Affairs appeared for the Repatriation Commission. Mrs Hughes gave evidence over the telephone. Evidence on her behalf was also given over the telephone by her son, Mr Neil Hughes and by Dr McArdle, the treating doctor of the late Mr Hughes. The respondent called Professor Cade who is the Director of Intensive Care at the Royal Melbourne Hospital. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

3. The death certificate (T5 p19) shows the cause of Mr Hughes' death on 18 December 1990 and duration of last illness as follows:
   Cause of death         Respiratory failure - 1 hour    
   Duration of last illness pneumonia - 1 month Disseminated prostatic carcinoma - 3 years.

4. Mr Hughes served in the Royal Australian Air Force from 20 August 1942 to 9 January 1946.  The whole of his service constitutes eligible service as that term is defined in s 7 of the Act.  Accordingly, the relevant standard of proof is that in s 120(4) of the Act.  The Federal Court has explained that the Tribunal must be satisfied on the balance of probabilities.  As the claim was lodged after 1 June 1994 s 120B applies.  Section 120B(3) provides that the Commission is to be reasonably satisfied that the death of a person is war-caused only if there is in force a Statement of Principles ("SoP") that upholds the contention the death was, on the balance of probabilities, connected with the veteran's service.

5. Mr Liefman did not contend that Mrs Hughes would be able to establish that her husband's carcinoma of the prostate was war-caused.  The applicant's submission was that Mr Hughes' death was contributed to by respiratory failure and pneumonia as shown on the death certificate and that those conditions should be found to be war-caused by reason of Mr Hughes having had a service related smoking habit.  It was agreed that the relevant SoP for respiratory failure and pneumonia is Instrument No. 74 of 1997 which deals with chronic bronchitis and emphysema.

6. Dr McArdle in his report of 8 November 2000 (A1) wrote:

   There is no doubt in my mind that he did indeed have "chronic bronchitis" and "emphysema".  I note he would fit the definition of "chronic bronchitis" as set out in the Veterans Entitlements Act 1986.  I note his COAD (chronic obstructive airways disease) would be consistent with emphysema and the terms were used at the time.
   . . .
   [H]aving further studied his old notes I can only conclude that he would fit the category of "Chronic bronchitis and Emphysema" and does meet the diagnostic requirements of the SoP as referred to by the VRB. 

7. Professor Cade in his report of 30 April 2001 (R1) accepted that the diagnosis of chronic obstructive airways disease ("COAD") was correctly made.  On the basis of that opinion the respondent conceded that Mr Hughes had suffered from COAD.

8. The submissions made by the applicant depended on Mr Hughes' smoking habit being characterised as related to service.  The SoP recognises smoking as a relevant factor.  It provides in paragraph 5(b):

   5.The factors that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of the person's relevant service are:

   (b)Smoking at least 15-pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of chronic bronchitis and/or emphysema.

9. The respondent claimed in paragraphs 4.5 to 4.7 of its statement of facts and contentions:

   4.5With respect to respiratory failure, pneumonia the respondent concedes that Mr Hughes suffered from these illnesses at the time of his death and submits that the relevant SoP under which they fall to be considered is that for chronic bronchitis and emphysema, number 74 of 1997.  This SoP has not been revoked or amended in the meantime so that the issues raised in Gorton do not arise.  A history of cigarette smoking to a specified level is listed in the SoP as a factor which would account for the onset of the disease.

   4.6In response to the Applicant's submission in her statement of 13 July 2001 that her husband progressed from a "social" smoker prior to his enlistment to a "confirmed regular smoker during his period in the RAAF", the respondent points out that this is inconsistent with her earlier version given on 24 June 1999 of her husband's smoking history [T documents page 32].  In her earlier statement the Applicant gives the date of his commencing to smoke as 1943 and states that the amount smoked did not vary subsequently.  The respondent submits that on the evidence available the Tribunal could not be satisfied on the balance of probabilities that Mr Hughes' smoking habit (or any increase therein) was related to his service.

   4.7In the alternative and in the event that the Tribunal finds that respiratory disease (chronic bronchitis and/or emphysema) was war-caused the respondent contends that the Tribunal may be satisfied on the balance of probabilities that it did not contribute to the Veteran's death.  The respondent submits that pneumonia was a terminal event consequent on advanced and incurable cancer and the possibility of its being related to chronic bronchitis and/or emphysema is remote.  The respondent relies on the report of 30 April 2001 from Professor J F Cade (copy forwarded 8 May 2001).

10. Professor Cade in his report of 30 April 2001 (R1) gave his opinion on the issue of whether chronic bronchitis or emphysema contributed to death.  He wrote:

    Although chronic bronchitis &/or emphysema can predispose to acute chest infections, I was unable to find any evidence in the available material to indicate that the veteran did in fact suffer from recurrent chest infections over the years.  Despite this, it is theoretically possible that chronic obstructive lung disease either predisposed to his terminal chest infection or rendered it more severe or more difficult to treat than it would otherwise have been.  However, I would not consider this suggestion likely, because there were no precursor infective events and because the pneumonia which caused death occurred in a setting of advanced and incurable cancer.  Pneumonia was thus an expected mechanism of death in a terminally ill patient, regardless of the presence or absence of any underlying chest disease. 

the evidence at the hearing. 

1. the lay evidence

1. Mrs Hughes and her son both gave evidence regarding the late Mr Hughes' smoking habit and whether or not he had recurrent chest infections.  Mrs Hughes said that her husband had smoked occasionally before they were married in 1935 and after marriage was a social smoker until enlistment but he had increased the level of his smoking during and after service.  She could not quantify amounts and she said that she had never discussed with her husband the reason why he increased his smoking habit during service.

2. Mr Neil Hughes who was born in 1950 said that he remembered his father as having always been a smoker but it was only from about 1960 onwards that he realised how heavily his father smoked.  Mr Liefman and the Tribunal asked Mrs Hughes and Mr Neil Hughes whether the late Mr Hughes had suffered from recurrent chest infections or bronchitis or colds or flu or symptoms of those conditions.  Neither gave any history of those problems.  There is a question whether the evidence of Mrs Hughes and Mr Neil Hughes as to smoking would allow the Tribunal to find that Mr Hughes had a service-related smoking habit sufficient to satisfy paragraph 5(b) of the SoP.

3. The Tribunal has, however, decided that it is not necessary to answer that question.  The medical evidence addressed the issue of whether Mr Hughes' COAD contributed to his death.  As set out earlier the death certificate does give pneumonia as one of the last illnesses.  The question is whether, on the balance of probabilities, that pneumonia was secondary to COAD or to disseminated carcinoma of the prostate.  Dr McArdle, who was the treating general practitioner for the last six months of Mr Hughes' life, said that in his opinion the existence of COAD made Mr Hughes more susceptible to pneumonia.

4. Dr McArdle agreed that pneumonia is a common cause of death in cases of disseminated malignancy.  He agreed that Mr Hughes' had advanced disseminated cancer of the prostate but he said Mr Hughes could have gone on living for longer were it not for the COAD.  However, when Dr McArdle went through the PSA test results in evidence before the Tribunal he conceded that they showed rapid progression between May and September 1990.  He did not agree that they necessarily indicated impending death because, he suggested, radiotherapy could sometimes extend a patient's life.

5. We find, on the evidence, that all possible treatments had been tried by mid 1990.  We accept Professor Cade's evidence that radio therapy was not an option for Mr Hughes as he already had bony metastasis at the time of initial diagnosis.  We prefer Professor Cade's evidence.  He concluded that terminal pneumonia was secondary to disseminated prostatic carcinoma and its general debilitating effect on Mr Hughes.  Professor Cade said that the two documented instances of Mr Hughes suffering chest infection in hospital in 1984, and again in November 1990, were not the sort of history he would look for to implicate COAD in the pneumonia.  The one incident was six years earlier than the death and the other was in fact part of the terminal event. 

6. We are not satisfied, on the balance of probabilities, that Mr Hughes' death was attributable to his COAD.  We do not find that it was a war-caused death.  The decision under review will be affirmed.

   I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Miss E.A. Shanahan, Member

   Signed:         G.A. Carney
     Associate

   Date/s of Hearing  5 September 2001
   Date of Decision  5 September 2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Mr P Liefman
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Nil
   Departmental Advocate           Mr K Herman