Jackson and Repatriation Commission
[2003] AATA 851
•1 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 851
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/514
GENERAL ADMINISTRATIVE DECISION DIVISION ) Re NANCY JACKSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Thorpe, Member Date1 September 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that the late veteran suffered from war caused disease diagnosed as cerebrovascular accident. The date of effect of this decision is 18 January 2000.
The Tribunal decides that the late veteran’s death was war caused and the widow is entitled to a war widow’s pension. The date of effect 24 May 2000.
[Sgd] Dr M Thorpe, Member
CATCHWORDS
VETERAN’S AFFAIRS - War Widow's pension – whether death of veteran is related to service – whether the veteran suffered from cerebral ischaemia – reasonableness of hypotheses – cerebrovascular accident – atrial fibrillation – ischaemic heart disease – cessation of smoking
LEGILSATION
Veteran’s Entitlements Act 1986 sections 120(1), 120(3),
Repatriation Medical Authority Statement of Principles Instrument No.52 of 1999 as amended by Instrument No.30 of 2002 Concerning Cerebrovascular Accident
Repatriation Medical Authority Statement of Principles Instrument No.9 of 1996 as revoked by Instrument No.19 of 2003 Concerning Atrial Fibrillation
Repatriation Medical Authority Statement of Principles Instrument No.38 of 1999 as revoked by Instrument No.19 of 2003 Concerning Ischaemic Heart Disease.
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission V Hancock (2003) FCA711
REASONS FOR DECISION
1 September 2003 Dr M Thorpe, Member 1. By application lodged with the Tribunal on 11 April 2002 Ms Nancy Jackson (“the Applicant”) sought review of the decision by the Repatriation Commission dated 4 and 5 July 2000 as affirmed by the Veteran’s Review Board (“the VRB”) on 7 March 2002 to refuse both the late Mr Jackson’s claim in respect of Cerebral ischaemia and the claim by the Applicant that the death of her husband was related to service. This outcome of this decision meant that the Applicant did not qualify for a War Widows Pension.
2. The Tribunal heard oral evidence from the Applicant and Mr Andrew Jackson, the son of the late veteran. The Tribunal was to hear concurrent evidence from Associate Professor Corbett and Professor McLeod but the concurrent evidence did not proceed and the Tribunal relied on their written reports. The Tribunal took into evidence the following documents:
Exhibit
Document
Date
T1
T documents
A1
Applicant’s Statement of Facts and Contentions
24 October 2002
A2
Statement of Applicant
30 September 2002
A3
Statement of Andrew John Jackson
15 October 2002
A4
Statutory Declaration of William Malcolm Henderson
23 September 2002
A5
Statutory Declaration of Christine Margaret Henderson
27 September 2002
A6
Report of Dr Alastair Corbett
12 November 2002
A7
Bundle of documents
18 December 2002
R1
Respondent’s Statement of Facts and Contentions
3 June 2003
R2
Report from Professor J.G McLeod
9 April 2003
R3
Report of Professor O’Rourke
12 June 2003
R4
Clinical notes from John Hunter Hospital
24 June 2002
R5
Veteran’s Review Board Transcript for Matters N01/1567 and NOO/1847
7 March 2002
LEGISLATION
3. The relevant legislation is the Veteran’s Entitlements Act 1986 (“the Act”), in particular sections 120(1) and 120(3):
“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 sub-section (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.”
4. The deceased veteran rendered operational service in the Royal Australian Air Force between 9 October 1942 and 24 September 1945 as that term is defined in section 6C of the Act. Thus the standard of proof in this matter is that mandated by subsections 120(1) and (3) of the Act.
5. Subsection 120(1) of the Act provides that this Tribunal shall grant the claim to have the deceased's death recognised as war caused, unless it is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination. Subsection 120(3) then provides that the Tribunal shall be so satisfied if, after consideration of all the material before it, no reasonable hypothesis has been raised connecting the death of the deceased with the circumstances of his particular service.
6. Section 120A of the Act states that any hypothesis raised by the material connecting death of the deceased with service shall not be reasonable unless it conforms to a so called Statement of Principle (“SoP”) issued by the Repatriation Medical Authority. In this matter, three SoP’s are applicable, namely Instrument No 52 of 1999 concerning Cerebrovascular Accident as amended by No 30 of 2002; Instrument No 9 of 1996 concerning Atrial Fibrillation as revoked by No 19 of 2003 and Instrument No 38 of 1999 for Ischaemic Heart Disease.
7. Subsection 120(6) of the Act provides that neither party to this review bears any onus of proof.
8. The Applicant relied on factor 5(k)(i) of the SoP for cerebral ischaemia which states:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service are:
(k) for cerebral ischaemia only,
(i)smoking 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 where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
…”
The Applicant also relied on factor 5(k)(v) of the SoP for cerebral ischaemia, which states:
“(k) for cerebral ischaemia only,
(v)evidence of a potential source of cerebral embolus at the time of the clinical onset of cerebrovascular accident; or”
Atrial fibrillation was the potential source of the embolus, to satisfy the SoP f concerning atrial fibrillation, No 19 of 2003 factor 5(b) needs to be met.
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting atrial fibrillation or death from atrial fibrillation with the circumstances of a person’s relevant service are:“
(b)suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation”.
To satisfy ischaemic heart disease the Applicant relied on factor 5(e) and 5(f) of SOP No. 38 of 1999.
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
“(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
…
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease: or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof , in other tobacco products, before the clinical inset of ischaemic heart disease or
…”
The smoking history was essential to the Applicant’s case.
9. The Respondent was very respectful of the late veteran’s long meritorious service.
10. The Respondent contended that the relevant disease and kind of death in this case, on the balance of probabilities, was intracerebral haemorrhage and the relevant SoP was Instrument No 52 of 1999. The Respondent contended that the late veteran did not suffer from cerebral ischaemia and that factor 5(k) of the applicable SoP was therefore irrelevant. The Respondent contended that the late veteran suffered an intracerebral haemorrhage for which smoking was not a risk factor and that none of the minimum requirements in the SoP dealing with that particular kind of cerebrovascular accident (“CVA”) could be satisfied.
11. In the alternative, the Respondent contended that the late veteran ceased smoking in approximately 1970 and that factor 5(f) of SoP No. 38 of 1999 for ischaemic heart disease could not be met.
12. The Respondent contended that the late veteran did not suffer from ischaemic heart disease and that this condition played no part in either his death or the cerebrovascular accident.
13. The Respondent further contended that the late veteran suffered from atrial fibrillation but none of the minimum factors listed in the applicable SoP for atrial fibrillation, namely Instrument 9 of 1996, as revoked by Instrument No.19 of 2003, can be met.
Background.
14. The late veteran first suffered a stroke on 24 May 1993. On 11 June 1993, Dr M.H. Everingham diagnosed right occipital lobe CVA precipitated by atrial fibrillation and thromboembolism (Supplementary T docs, p27). He was placed on long term ‘warfarin’. There was a gradual deterioration of intellectual function and evolving dementia. A CT scan of 10 May 2000 was reported as showing multiple brain infarcts. (Supplementary T docs, p1).
15. On 23 May 2000 the late veteran was found at home collapsed and admitted to the John Hunter Hospital with a cerebral haemorrhage. A CT scan showed a massive posterior fossa bleed with supratentorial extension and brain stem compression. (Exhibit R4). He died the same day.
Applicants evidence
16. In a statement dated 30 September 2002, (“Exhibit A2”) the Applicant reported that to her knowledge her late husband started smoking in Canada on service. On return home from the Bahamas, he was a heavy smoker, smoking 40 to 50 tailor made cigarettes a day. In 1969 or 1970 her husband told her he gave up smoking and she cannot recall him smoking after that time. However, she had been told by a number of people that he smoked on occasion after that date. In oral evidence the Applicant said she had no sense of smell and therefore no way of knowing if her late husband smelt of tobacco. She had not noticed him smoking on special occasions subsequent to 1970. She also said that he had ample opportunity to smoke away from the house.
17. Mr Andrew Jackson, the son of the late veteran, provided a statement dated 1 October 2002 (Exhibit A3) and gave evidence. In his statement he reported that when he left home in 1968, his father was still smoking. He knew nothing of his father ceasing smoking about 1969/1970 but he reported that he knew that his father still smoked occasionally.
18. In evidence he said his father smoked cigarettes at football matches during the 1980’s and that he had a cigarette at his sister’s wake, at a cousin’s open air wedding in the park and on Anzac day.
19. A statutory declaration of Mr William Malcolm Henderson dated 23 September 2002 stated “That I witnessed Sydney Jackson smoking at a wedding event in Sydney held in October 1990” (Exhibit A4)
20. A statutory declaration of Ms Christine M. Henderson dated 27 September 2002 reported that “on 20-10-1990 I saw Sid Jackson smoking on the back of the upper deck of the boat on which we held our reception. I remember this because I was unaware that he smoked.” (Exhibit A5)
Medical Evidence
21. Dr. Geoff Tyler, Respiratory and General Physician, reported on 2 August 1993 (T5, p26) that
“Approximately 8 weeks ago he awoke with unsteadiness on his feet, nausea, difficulty with vision and inco-ordination. These symptoms gradually eased over a week, and he is now virtually back to his normal self apart from minor problems with his memory.”
Dr Tyler reported that the late veteran was seen by his local medical officer, Dr Everingham, who diagnosed a cerebrovascular accident, and started him on ‘warfarin’ after a number of investigations including a CT scan and an ultrasound of his carotids, which confirmed an occipital infarct.
22. A CT Scan was conducted on the late veteran on 28 May 1993. The CT scan results confirmed a 3-4 cm low density focus in the posterior parietal lobe of the right hemisphere and a similar, smaller non-enhancing focus of low density higher in the right cortex close to the midline. It was observed that the appearance of the larger lesions were consistent with a recent infarct. The smaller more superior lesion had the appearance of an older infarct.
23. In his report, Dr Tyler stated that the late veteran had a posterior circulation cerebrovascular accident secondary to his atrial fibrillation and embolism from his heart and that his local doctor, Dr Everingham, had placed him on appropriate treatment of ‘warfarin’.. An ECG dated 26 May 1993 was reported as showing atrial fibrillation with controlled ventricular response.
24. Dr Corbett, Neurologist, in his report dated 12 November 2002, based on various documents available to him, considered the late veteran suffered a posterior circulation stroke in 1993, almost certainly caused by an embolus from the heart as a result of atrial fibrillation (“Exhibit A6”). The cause of the atrial fibrillation was not documented. Dr Corbett noted that the late veteran had an enlarged heart on his chest X-ray, normal heart sounds and no cardiac murmur.
25. Under those circumstances Dr Corbett considered the most likely cause for the atrial fibrillation was ischaemic heart disease. The only clearly documented factor for ischaemic heart disease was the late veteran’s long-standing cigarette smoking. Dr Corbett considered the late veteran was appropriately commenced on treatment with ‘warfarin’ for the atrial fibrillation and prevention of further emboli. He considered the increasing cognitive impairment and developing dementia, were related to the cerebrovascular disease and that the documented hypertension, on one occasion, may have been a further contributing factor to the cardiovascular and cardiac disease. He considered the late veteran’s death was ultimately the result of an intracerebral haemorrhage in the setting of anti-coagulation with ‘warfarin’.
26. Professor J. G. McLeod Neurologist in a report dated 9 April 2003 (Exhibit R2) opined that there was no doubt from the history and the findings on the CT scan that the late veteran died of an intracerebellar haemorrhage.
27. He considered that the late veteran had a cerebral embolus in 1993 and that the CT scan at that time indicated there had been at least two emboli. He also believed the atrial fibrillation was the cause of the embolus (or emboli). Professor McLeod could not find any clinical features of ischaemic heart disease but as he himself said “I am not a cardiologist”
28. He did not consider that the stroke or cerebrovascular accident causing death was due to an embolus that originated in the heart. He considered it was an intracerebellar haemorrhage probably related to hypertension. He considered the ‘warfarin’, while not causing the intracerebellar haemorrhage, would have facilitated the expansion of the haematoma once bleeding had commenced in the brain.
29. Professor Michael O’Rourke, Specialist in Cardiovascular Medicine, on 12 June 2003 considered there was no evidence of ischaemic heart disease prior to the clinical onset of atrial fibrillation in 1993 (“Exhibit R3”). He considered the underlying cause of the atrial fibrillation was aging change with arterial degeneration and stiffening, elevation in systolic arterial pressure and increased left ventricular load. He considered the late veteran suffered from hypertension. Dr Everingham and other doctors recorded a systolic pressure in excess of 140mm Hg, the level currently used by US and WHO to identify the upper limit of the normal blood pressure.
30. Professor O’Rourke considered it possible to have atrial fibrillation in the absence of ischaemic heart disease. He contended that the most common cause of atrial fibrillation in the elderly is from chronically elevated left ventricular load associated with arterial stiffening which occurs unrelated to ischaemic heart disease.
Submissions
31. The Applicant submitted that that the case turned on the late veteran’s smoking history. The Applicant's evidence was that her late husband had given up smoking in 1969 or 1970 and that she did not see him smoke after that time. However, the Applicant said she was aware that other people disagreed with the complete cessation and that there would have been every opportunity for him to have smoked without her knowledge. The fact she had no sense of smell meant that she would not have been able to detect smoke on his breath. The late veteran’s son, Mr Andrew Jackson, said he gave his father cigarettes on different occasions subsequent to 1969/1970. In terms of the hypothesis, the Applicant maintained that her late husband had a smoking habit up until 1990, as witnessed by others. That being the case a factor for cerebrovascular accident was thereby raised because it was within 15 years of any cessation. Whilst he may not have smoked at the same rate, the Applicant referred to Repatriation Commission v Williams (2001) FCA 1195, a similar circumstance where Mrs Williams had knowledge of a previous smoking habit but was unaware that her husband continued to smoke.
32. The Applicant noted that the SoP No 52 of 1999 concerning cerebrovascular accident dealt with both cerebral ischaemia and cerebral haemorrhage. The event of June 1993 was of cerebral ischaemia. The Applicant contended that the late veteran's smoking habit led to the development of ischaemic heart disease and relied on the report of Dr Corbett 12 November 2002 and that the late veteran satisfied factor 5(e)(ii) of SoP 38 of 1999 for ischaemic heart disease. The Applicant contended the late veteran's ischaemic heart disease led to the development of atrial fibrillation. The Applicant relied on SoP no 19 of 2003 concerning atrial fibrillation and Dr Corbett’s report dated 12 November 2002 (Exhibit A6), which stated:
“Under the circumstances, the most likely cause for his atrial fibrillation is ischaemic heart disease and the only clearly documented risk factor for ischaemic heart disease is his long standing cigarette consumption”
33. The Applicant contended that the late veteran's atrial fibrillation caused him to suffer a cerebral embolus at the time of the stroke. The Applicant relied on the same report of Dr Corbett, which states
“In 1993 he suffered a posterior circulation stroke. The cause for this is almost certainly an embolus from the heart as a result of atrial fibrillation which is first documented at the time of his stroke.”
In this regard the Applicant contended the veteran satisfied factor 5(k)(v) of the SoP No. 52 of 1999 and again relied on the report of Dr Corbett dated 12 November 2002.
34. The investigations at that time showed no evidence of ischaemic disease with perhaps the exception of an X-ray dated 20 May 1995 that reports moderate aortic atherosclerosis (Exhibit A7). The Applicant conceded that this differed from Professor O'Rourke's opinion who agreed with Professor McLeod that there was no evidence of ischaemic heart disease in the late veteran. The Applicant proposed that “stiffening of arteries “as described by Professor McLeod could itself be properly characterised as an atherosclerotic process. The Applicant argued that this process is in fact a disease process and thus provides at least an inference of ischaemic heart disease. At the time of onset of the CVA in 1993 the late veteran was found to have atrial fibrillation. He was then placed on ‘warfarin’ for treatment of the atrial fibrillation and then suffered a cerebral haemorrhage in May 2000.
35. The Respondent submitted that the Tribunal had to be reasonably satisfied as to the kind of disease and the kind of death. A central issue before the Tribunal was whether the cause of death was cerebral ischaemia or intracerebral haemorrhage. It was the Respondent's submission that it was beyond doubt that intracerebral haemorrhage was the terminal event that cannot be linked with smoking. The haemorrhage was caused by the ‘warfarin’, which the late veteran was taking for the atrial fibrillation. The difficulty for the Applicant is that the kind of cerebrovascular accident suffered by the late veteran can not be linked with smoking. Smoking is only relevant if the kind of cerebrovascular accident is of the ischaemic variety under factor 5(k) SoP No. 38 of 1999.
36. Neither Neurologist made it clear whether the first stroke in 1993 was an intracerebral haemorrhage or cerebral ischaemia. The Respondent submitted that the initial stoke was one caused by the atrial fibrillation, and was not a result of a smoking related disease such as cerebral or coronary atherosclerosis. An issue to be determined by the Tribunal is whether the late veteran had ischaemic heart disease. The Respondent relied on Professor O'Rourke’s contention that the late veteran did not have ischaemic heart disease.
37. The Respondent pointed to numerous unambiguous references in the T- documents including:
· a Smoking Questionnaire filled out by the late veteran, which states that he quit smoking in 1969/1970 (T5, p25)
· a report by Dr Tyler which states that the late veteran “ceased smoking in 1969” (T5 p26)
· a letter from Dr Keith Murree Allen which states that “He had smoked from the age of 28 to 53, forty cigarettes per day” (T7, p28)
· A report by Dr Everingham which states “H/O heavy smoking which began during the war and continued up until 1969” (T9, p33)
· A statement of the Applicant stating “He stopped smoking in 1969 – 1970…” (T10, 34)
· A report by Dr Everingham stating “He stopped smoking in 1965…Mr Jackson's cough and sputum were much worse soon after ceasing smoking and have gradually improved over the years”; (Page 34A)
· A statement from an Veterans’ Review Board Application for Review form, “About 23 years after stopping smoking he had a stroke”
· A Department of Veteran’s Affairs ‘Claimant Report – Cigarette Smoking’ questionnaire signed by the Applicant which states that the veteran stopped smoking permanently about 1969 – 1970.
· a report by Dr Thursby stating “He started smoking in the war years and continued for about 20 years”; at page 27 (Exhibit A7)
· , A report by Dr Lander stating “he ceased smoking in 1964”; (Exhibit R4)
· , Notes from the John Hunter at page 2 “Smokes at 28 to 53, 40 a day”. (R4)
38. The Respondent emphasised that although the Applicant had ample opportunity, she did not observe the late veteran smoking after 1970. Mr Andrew Jackson left home at age 22 and his opportunities for observing his father smoking were extremely limited. The Respondent submitted that even if one accepted that the late veteran had the odd OP cigarette on isolated, rare social occasions, it was occasional smoking and not a habit.
39. Concerning the SoP for cerebral ischaemia and factor 5(k), the Respondent submitted that the fact there may have been smoking in the past did not necessarily mean the SoP was satisfied if the cause of the condition was something else. The evidence in this case is that the cause was atrial fibrillation, not smoking. The Respondent's submission was that if the stroke was caused by an embolus or atrial fibrillation, SoP No. 19 of 1999 factor 5(k)(i) must be read in its context in terms of cessation. Factor 5(k)(i) says:
“(k)smoking 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 where smoking had ceased, the clinical onset has occurred within 15 years of cessation; or”.
…
40. The Respondent submitted that the smoking requirement of factor 5(k) must be read in its context in terms of cessation. The factor says
“Smoking at least five a day for at least five years before the clinical onset, and where smoking has ceased, the onset has occurred within 15 years of cessation.”
’Cessation’ in the Respondent’s submission must mean cessation of smoking at that rate. It does not mean cessation of smoking absolutely, all the time and forever. It means cessation of smoking at least five cigarettes a day.
Tribunal's Deliberations
41. The parties agree that cause of death in 2000 was intracerebral haemorrhage.
42. The Applicant put forward material that advanced two hypotheses. The first hypothesis which the Tribunal will call the Cerebral Ischaemia Hypothesis was that the late veteran's smoking habit caused the cerebral ischaemia and the cerebral ischaemia caused or contributed to his death. The second hypothesis which the Tribunal will call the Ischaemic Heart Disease Hypothesis was that the late veteran’s smoking habit led to the development of ischaemic heart disease, which led to atrial fibrillation, which caused him to suffer a cerebral embolus at the time of the initial cerebrovascular accident. It continues that the treatment with anticoagulants for the emboli resulted in cerebral haemorrhage, the cause of death. The Respondent's submission was that smoking was not a risk factor for intracerebral haemorrhage and that none of the minimum requirements in the SoP dealing with that particular kind of cerebrovascular accident could be met. The Respondent also submitted that the Tribunal was to be reasonably satisfied that the cerebrovascular accident in 1993 was either an intracranial haemorrhage or cerebral ischaemia.
43. Before step one of the Repatriation Commission v Delidio (1998) 83 FCR 82 methodology it is necessary to take two extra steps (Repatriation Commission V Hancock [2003] FCA 711). The first self-evident step is to establish the pre-conditions for a claim other than causation on the balance of probabilities. In this case the pre-conditions are that Mr Jackson was a veteran, that the Applicant was his widow and that the veteran had died. Secondly, in order to ascertain whether a SoP applied it was necessary to identify the “kind of injury” or the “kind of death” suffered by the late veteran.
44. The Applicant said the SoP for cerebrovascular accident contemplated two different cerebrovascular accidents, namely cerebral ischaemia and intracerebral haemorrhage both of which are specified in that SoP. The Respondent said there was one cerebrovascular accident namely intracerebral haemorrhage and there was no SoP linking smoking with intracerebral haemorrhage. It was agreed that the cerebral haemorrhage was a consequence of anticoagulant therapy. It was also agreed that the anticoagulant therapy was for the treatment of cerebral embolus from the heart as a consequence of atrial fibrillation. .
45. The Applicant said the kind of disease in 1993 was cerebral ischaemia subsequent to a cerebral embolus and relied on the opinion of Dr Everinghan and Dr Tyler. There was a CT Scan supportive of a cerebral infarct. There was some question as to the duration of the infarcts on the CT scan, but taken in conjunction with the history it was reasonable to say the CT scan finding coincided with the cerebrovascular accident. The Applicant said the late veteran's atrial fibrillation caused him to suffer a cerebral embolus and relied on the opinion of Dr Corbett. Other medical evidence, including Professor McLeod’s opinion, supported the diagnosis of cerebral embolus. The Respondent quibbled whether the infarct was ischaemic or haemorrhagic as it was not stated in the medical reports.. The Tribunal had difficulty finding any support for the 1993 cerebrovascular accident as being a haemorrhage. Indeed it would have been unusual or in fact bad practice to commence the late veteran on anticoagulants if this had been the case. If it was a cerebrovascular accident caused by atrial fibrillation, the Respondent said, it was not the result of a smoking related disease. This then raised the question of whether the late veteran had ischaemic heart disease, as the factor responsible for the atrial fibrillation. The Applicant relied on the evidence of Dr Corbett. The Respondent relied on the opinion of Professor O'Rourke and Professor McLeod that the late veteran did not have ischaemic heart disease.
46. The Tribunal was satisfied that pre-conditions other than causation had been made out. Next the Tribunal was required to determine on the balance of probabilities “what kind of death” the late veteran suffered. This involved the identification, on balance of probabilities, of any and all SoP's and/or determinations under s180A2 of the Act and any other ”kinds of death” which are applicable to that death. Relevant SoP's were in force determined by the Authority under a 196B(2) or (11). The Tribunal must then follow the four stages of analysis, which were prescribed in Delidio (supra). On the basis of the medical evidence before it, the Tribunal is satisfied the late veteran suffered a cerebral embolus in 1993 and that the he had atrial fibrillation at that time. The Tribunal is satisfied that the late veteran was commenced on anticoagulants at that time for the prevention of further emboli. The Tribunal is satisfied that the late veteran suffered a cerebral haemorrhage in 2000 as a consequence of the anticoagulant treatment and that the cerebral haemorrhage caused his death.
47. The relevant SoP for cerebral haemorrhage is No 52 of 1999 Factor 5(M)(1) “undergoing anticoagulant therapy at the time of the clinical onset of the cerebrovascular accident
48. The Tribunal found In accordance with step one that the material pointed to hypotheses connecting cerebrovascular accident with the circumstances of the particular service, which he had rendered.
49. In accordance with step two, there were in force the relevant SoP's determined by the Authority under s 196B(2). For the purposes of the SoP’s, ‘cerebrovascular accident’ means cerebral ischaemia or intracerebral haemorrhage. There were two separate cerebrovascular accidents to consider the cerebral ischaemia in 1993 and the fatal intracerebral haemorrhage in 2000.
50. The Tribunal was satisfied that the cerebrovascular accident in 1993 was cerebral ischaemia. The genesis of the cerebrovascular accident was a cerebral embolus. The opinion of the two doctors involved at that time and the confirmation on CT scan that the veteran had suffered cerebral ischaemia (cerebral infarction) as a consequence of a cerebral embolus. There were two relevant SoP's for cerebral ischaemia Factor 5(k)(1) and Factor 5(k)(v).
51. The next step was to determine whether the hypothesis raised was a reasonable one and if so whether the hypothesis was consistent with the template. To meet the requirements of factor 5(k)(1) for cerebral ischaemia, the Tribunal needs to be satisfied that the late veteran's smoking was war caused and the requisite quantum was smoked. The Applicant's evidence was that her husband commenced smoking on service in Canada and continued to be a heavy smoker up until 1969/1970. There was no dispute that the late veteran's smoking was service related. Concerning quantum, the Tribunal agreed with the Applicant’s submission that factor 5(k)(1) provides for a minimum block of smoking that has to be fulfilled. The Tribunal was satisfied the late veteran achieved the necessary quantum of at least five cigarettes per day for at least five years.
52. The veteran had ceased smoking at the time of onset of cerebral ischaemia in 1993. The question for the Tribunal was whether smoking had ceased within 15 years of that date.
53. There was evidence before the Tribunal by Mr Andrew Jackson, Christine Henderson and William Henderson that they saw the late veteran smoking at a wedding in October 1990. There was also evidence from Mr Andrew Jackson that he saw and smoked with his father on special occasions during the 1980's. There was no evidence concerning the frequency and number of cigarettes smoked up until 1990. The Tribunal can however accept that the late veteran smoked up until 1990. The question whether reduction of smoking to a “minimal” level was the equivalent of a cessation of smoking was considered in Williams (supra).
54. Williams (supra) is similar to this matter in that the widow said her husband stopped smoking about 1975/1976 whereas there was evidence from a friend that he continued to smoke until at leat Christmas 1998. In Williams (supra) it was considered the smoking habit continued up until death and that factor 5(e) was satisfied. In this case the evidence was that he ceased smoked in 1990. This was considered in Williams
“By way of hypothetical example, take the case of a veteran who commenced to smoke heavily during the Second World War and thereafter smoked two packs a day for 50 years. Because of health worries, the veteran then dropped his or her consumption to one or two cigarettes a day. Two years later, ischaemic heart disease was diagnosed. If, two years before clinical onset, the veteran had ceased smoking entirely, the veteran would have been covered by factor (f).”
55. As to the issues arising in factor 5(e) of SoP No 38 of 1999 and factor 5(k)(i) of SoP No 52 of 1999, there was no basis for any finding that the late veteran had ceased smoking in 1969/1970. It was then not for the Applicant to prove that the veteran in fact had not continued to smoke after 1970. The Applicant gave evidence as to the possibility of her late husband smoking outside the home and Mr Andrew Jackson and the Henderson’s provided positive unchallenged evidence that the late veteran smoked until at least 1990. This material plainly raises a hypothesis of cessation of smoking within the 15 years of the clinical onset. As in Williams (supra), it is not necessary to express any conclusive view as to whether smoking on social occasions might be accommodated under the de minimus rule.
56. The Tribunal finds that the late veteran continued to smoke until 1990. Therefore, the Tribunal finds that the requirements for cerebral ischaemia, in particular factor 5(k)(i) “ the clinical onset has occurred within 15 years of cessation of smoking” is satisfied. This being the case it was not necessary for the Tribunal to pursue Factor 5.(k)(v)
57. The cause of death was intracerebral haemorrhage, which is covered by factor 5(m)(i) of SoP No. 52 of 1999 “undergoing anticoagulant therapy at the time of the clinical onset of cerebrovascular accident”. The anticoagulant therapy was for cerebral ischaemia, for which the Tribunal has accepted as war caused. The Tribunal finds that the late veteran’s death was war caused within the meaning of section 8 of the Act.
Decision
58. Moving on to consider step four of Deledio (supra), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the late veteran’s cerebrovascular accident did not arise from a war caused injury. The Tribunal had it’s doubts about the link between war service, smoking and the Applicant’s cerebrovascular accident but there was insufficient basis for the Tribunal to be satisfied beyond reasonable doubt that the cerebrovascular accident was not war caused or that one of the factual elements of the hypothesis was applicable.
59. The Tribunal sets aside the decision under review and in substitution therefor decides that the late veterans death was war caused and the widow is entitled to a war widows pension. The date of effect 24 May 2000.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M.E.C. Thorpe, Member
Signed: A. Krilis
AssociateDate of Hearing 27 June 2003
Date of Decision 1 September 2003
Counsel for the Applicant Mr Mark Vincent
Solicitor for the Applicant Ms Tamara Daran
Representative for the Respondent Mr Jim Marsh
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