Jean Lockhart and Repatriation Commission
[2009] AATA 826
•26 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 826
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/1639
VETERANS’ APPEALS DIVISION )
) Re Jean Lockhart Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date26 October 2009
PlaceMelbourne
Decision The Tribunal is satisfied that the applicant does not succeed on the ischaemic heart disease, the atrial fibrillation, the aortic stenosis, the osteoarthrosis or hypertension conditions. The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS – VETERANS’ ENTITLEMENTS ACT – statements of principles – ischaemic heart disease – osteoarthrosis – atrial fibrillation – aortic stenosis – hypertension – obesity – body mass index – decision under review affirmed
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act1986 ss 8, 9, 119, 120 and 120B
REASONS FOR DECISION
26 October 2009 Mr G L McDonald, Deputy President 1. The applicant is appealing against a decision of the Repatriation Commission dated 18 August 2006, and affirmed on review by the Veterans’ Review Board (“VRB”) on 26 March 2007, refusing to accept that the death of the veteran, her late husband, was war-caused.
The Hearing
2. At the hearing the applicant was represented by Mr Dino De Marchi. The respondent was represented by Mr Ken Rudge from the Department of Veterans’ Affairs. The Tribunal had before it the documents filed for the purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”).
3. The Tribunal heard oral evidence from the applicant, the veteran’s daughter, Mrs Kelly Binyon, and Dr Byron Collins, a forensic pathologist, who had also filed two reports.[1] Professor Richard Harper, the Emeritus Director of Cardiology at the Monash Medical Centre and a cardiac surgeon of 30 years standing, provided a report and gave oral evidence for the respondent.[2]
[1] Exhibits A2 and A3.
[2] Exhibit R4.
4. The Tribunal also had before it a history of medical reports relating to the applicant’s knee conditions and some extracts from clinical notes of the veteran’s general medical practitioner.[3]
[3] Exhibits R1 and R3 respectively.
Veteran’s Background
5. The late veteran was born in 1913 and died aged 92 years on 21 February 2006.
6. He served in the Australian Army in the Second World War between 16 December 1941 to 11 February 1944 as a member of the 26th Machine Gun Regiment and the 101 Motor Regiment. The veteran therefore had eligible war service for purposes of the Veterans’ Entitlements Act 1986 (“the Act”).
7. At the time of the veteran’s death he had an accepted disability of bilateral osteoarthritis of the knees and was in receipt of a pension paid at 30% of the general rate.
8. The veteran’s death certificate,[4] completed by his general medical practitioner, Dr Lowery, lists the following as causing his death:
Pulmonary oedema – 2 days, Atrial fibrillation and aortic valve disease – years, Ischemic heart disease – years, Atherosclerosis and old age – years; Hypoalbuminemia – months, chronic renal failure – years, Osteoarthritis – years
[4] T document, T9, page 75.
9. In her original application to the Repatriation Commission, the applicant claimed that all of the listed causes of the veteran’s death were war-caused conditions. While mentioned as being causes of the veteran’s death, pulmonary oedema (excessive blood in the lungs), hypoalbuminaemia (an abnormally low concentration of albumin in the blood) and chronic renal failure have not been contended as being connected to his war service. Old age is neither a cause of death nor can it be connected to the veteran’s war service.
Tribunal’s Consideration
10. Some of the factors relied upon at the hearing as constituting a connection between service and the veteran’s death were not raised in the statement of facts issues and contentions filed on behalf of the applicant but were agitated before the Tribunal. While the procedures of the Tribunal are informal and designed to permit flexibility, in cases where an applicant is represented by a legal practitioner, as in the instant case, the Tribunal expects to be assisted by a clear identification of the issues. Issues not raised prior to the commencement of the hearing were the connection of the following to his service: smoking, the veteran’s hip to waist measurement as well as his arthritic knee condition which, it was submitted, resulted in him gaining weight so that he was unable to undertake physical activities greater than three METS prior to the onset of ischaemic heart disease. These factors were said to connect the veteran’s service to his ischaemic heart condition. Additionally, hypertension was added as a contributory cause of death. Smoking was not, however, then pursued at the hearing and the Tribunal is satisfied that there is insufficient evidence or material before it which would support the veteran’s smoking as being connected to ischaemic heart disease.
11. The standard of proof is that provided by s 120(4) of the Act, that is, on the balance of probabilities. The Tribunal must be reasonably satisfied that the death of the veteran was war-caused with reference to the Statements of Principles (“SoPs”) issued by the Repatriation Medical Authority outlined below: s 120B. It will be war‑caused if the terms of the relevant SoP are satisfied.
(A) Ischaemic Heart Condition (Statement of Principles No 90 of 2007)
12. Clause 3(b) of the SoP relevantly defines ischaemic heart disease as follows:
For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
13. If the veteran is determined to have suffered ischaemic heart disease the Tribunal must then determine whether it is connected to the veteran’s service as the result of the veteran suffering any one of the following relevant factors:
(i)hypertension (factor 6(a));
(ii)being obese for at least five years within the 15 years before the clinical onset of ischaemic heart disease (factor 6(c));
(iii)having a waist to hip circumference ratio exceeding 0.9 for at least five years within the 15 years before the clinical onset of ischaemic heart disease (factor 6(e)); and
(iv)an inability to undertake any physical activity greater than three METs for at least seven years before the clinical onset of ischaemic heart disease (factor 6(j)).
14. Both Dr Collins and Professor Harper agreed that the applicant suffered atherosclerosis (narrowing or hardening of the coronary arteries). It is not sufficient to establish that a veteran suffers ischaemic heart condition because he/she suffers from atherosclerosis. The latter condition is a prerequisite to such a finding but is not conclusive. The decision maker must also be satisfied that there was an insufficient flow of blood to the tissue muscle as the result of the presence of atherosclerosis. On the one hand, Dr Collins opined that the evidence demonstrated that the veteran suffered atherosclerosis and that the condition was more likely than not the cause of the veteran’s arteries blocking and that this resulted in the veteran suffering from an ischaemic heart condition. On the other hand, Professor Harper opined that while the veteran suffered atherosclerosis it was limited to the walls of the arteries and was unlikely to have led to there being an insufficient flow of blood to the muscle tissue of the heart and hence the veteran was unlikely to have died from an ischaemic heart condition.
15. From the evidence there is a basic disagreement between the two doctors as to whether the atherosclerosis caused an insufficient flow of the blood to the heart muscle tissue which then resulted in the veteran suffering ischaemic heart disease. This is a threshold issue. If Professor Harper’s evidence is accepted then the veteran’s circumstances will not accord with the SoP template and the claim will fail on this ground. If Dr Collins’ evidence is accepted then it will be necessary to examine the factors in the SoP which may connect the veteran’s service with the condition.
16. The starting point in examining this issue is in 2000. In that year the applicant collapsed while on holiday and was admitted to the Geelong District Hospital. There, a cardiac catheterisation was undertaken by Dr Georg Leitl.[5] Dr Leitl reported, among other things, that catheterisation was difficult to conduct because of extensive calcification. In particular he noted that the left main coronary artery was difficult to cannulate because of extensive calcification.[6] Dr Leitl reported to the applicant’s general treating practitioner in a letter dated 19 May 2000 that “I’d refer to him as ‘the calcified man’. Every part of him is solidly calcific. His arteries are like rocks and very difficult to manipulate.”[7] Despite this, Dr Leitl stated that the arteries “… although calcified, are not obstructed …” and “He has trivial aortic incompetence.”[8] Dr Leitl advised aortic valve replacement.
[5] Exhibit R3, 101.
[6] Exhibit R3, page 101.
[7] Exhibit R3, page 102.
[8] Exhibit R3, page 102.
17. Dr Leitl’s advice was followed and a successful aortic valve replacement operation was conducted on 1 August 2000. No report was produced from the surgeon who undertook the operation and no other contemporaneous records were apparently able to be located.
18. Dr Jeremy Hammond, a physician, examined the veteran for the respondent and prepared a report dated 12 November 2002. The report records some of the main aspects of the veteran’s post discharge medical history. Dr Hammond had access to Dr Leitl’s reports which he summarised as follows:
This investigation revealed aortic stenosis, with an aortic valve gradient of 50 mm of mercury, in addition to poor left ventricular function. The left main coronary artery was reported to be normal, the left anterior descending reported to have minor disease in the proximal approximal segment, the circumflex coronary artery to have minor disease in the first marginal artery, and the posterior intraventricular artery to be relatively small and have a stenosis at its origin from the right coronary (this is a branch of the right coronary artery).[9]
[9] Exhibit R2, page 4.
19. Professor Harper, in his evidence, distinguished calcification of the wall of the artery and calcification of that part of the artery through which the blood flows. Professor Harper opined that he took Dr Leitl’s report to refer to the calcification of the wall only, and stated that this would not restrict the flow of blood to the heart. If there was only minor coronary artery disease then the veteran could not have atherosclerosis sufficient to result in death by ischaemic heart disease. Professor Harper opined that given the presence of documented poor left ventricular function that it was this which was more likely to have caused the veteran’s death. It was Professor Harper’s evidence that poor left ventricular function was secondary to long standing hypertension. He opined that the veteran’s atrial fibrillation was a likely manifestation of his high blood pressure.
20. Dr Collins agreed in his first report that having regard to Dr Leitl’s findings, there was minimal/mild disease affecting the veteran’s arteries and that it could not be reasonably opined that the veteran suffered significant or life threatening ischaemic heart disease. Dr Collins reported, that following Dr Hammond’s conclusion that the veteran suffered atrial fibrillation, that it was probable that the veteran was suffering cardiac disease at the time of the onset of atrial fibrillation. Finally Dr Collins opined that if the veteran’s accepted osteoarthritis of the knees had “… directly caused or contributed to weight gain/decrease in exercise capacity, of an appropriate magnitude …” then that could connect his war service to the ischaemic heart disease.[10] Dr Collins requested copies of clinical notes from Dr Michael Lowery, the Sea Lake Medical Practice, and from the hospital and nursing home.
[10] Exhibit A2, page 3.
21. After receipt and consideration of the additional information Dr Collins opined in a report dated 31 May 2008 that from the evidence of Dr Hammond and another doctor who examined the veteran that the veteran commenced suffering atrial fibrillation in the mid 1990s.[11] According to Dr Collins it was highly likely that the veteran continued to suffer (that is, from 2002) among other conditions, pulmonary oedema and atrial fibrillation. He opined that it was “highly likely” that in the presence of calcific coronary atherosclerosis that the two identified conditions resulted from ischaemic heart disease completely or in part developing as the result of underlying coronary artery disease.[12] However, Dr Collins also noted the importance of obtaining a report from Dr Lowery. No such report was forthcoming, a matter which Dr Collins felt constrained him from giving a definitive opinion.[13]
[11] Exhibit A3.
[12] Exhibit A3, page 2.
[13] Transcript, page 57.
22. In his oral evidence Dr Collins explained that initially atherosclerosis is manifested by fatty plaques within the wall of the artery. Those fatty plaques degenerate and tend to ulcerate and increase in size with further fatty deposition which along with an accumulation of blood products on the ulcerated surface upsets the normal flow of blood. It was Dr Collins’ opinion that to meet the definition of ischaemic heart condition there only needed to be the presence of atherosclerosis because the definition did not address the “… extent of narrowing or degree of severity of the coronary arteries …”[14] His conclusion was expressed to be on the basis “if” the atherosclerosis “… produced myocardial damage as a consequence of poor oxygenation of the heart muscle, through whatever degree of restriction of the cardiac blood flow, then that will contribute, to some extent, to the cardiac failure because it contributes to the poor function of the heart.”[15] Dr Collins agreed in cross examination that at the time the angiogram was carried out that the veteran’s atherosclerosis was not of significant severity that a bypass was warranted and agreed that it was speculative to conclude one may be needed in the future.
[14] Transcript, page 50.
[15] Transcript, page 51.
23. Dr Collins also agreed in cross examination that his evidence was based on supposition because no post mortem examination was carried out and consequently no heart muscle slides were available for examination. However, he stated that it was his opinion, having conducted over 10,000 autopsies involving heart examinations, that clinical or investigatory examinations had not always proved correct when they report there being no presence of ischaemic heart disease when there is evidence of coronary heart disease present.[16] Dr Collins maintained that the following indirect evidence was relevant to support his opinion:
(i)the treating doctor reported ischaemic heart disease as being one of the causes of the veteran’s death;
(ii)there is evidence in the treating doctor’s clinical notes to old myocardial infarction (Dr Lowery notes that on 28 October 1985 the veteran was admitted to the Bendigo Coronary care unit “... with the diagnosis of query inferior acute myocardial infarction and ventricular ectopics”[17]);
(iii)there are indications at the time the veteran was admitted to the Geelong hospital in 2000 for ischaemic heart disease;[18]
(iv)additionally, Dr Collins stated that hypertension could also be a pointer to ischaemic heart disease even although the doctor agreed he had not mentioned this in his report as being a likely contributor to the veteran’s cause of death.[19]
[16] Transcript, page 55.
[17] Transcript, page 59.
[18] Exhibit R3, page 92.
[19] Transcript, page 57.
24. It is possible that all of Dr Collins’ conclusions are justified. The Tribunal, as a fact finding body, is required to deal with probabilities, not possibilities. The fact that Dr Leitl did not mention the applicant having significant atherosclerosis, as Dr Collins stated, does not necessarily mean that the condition was not significantly present. However, that statement does not, and cannot, contribute to a finding that the disease was significantly present. Equally, Dr Collins’ references to both Dr Lowery’s notes of October 1985 and to the Geelong Hospital admission record of 2000 are not references to material which is expressed sufficiently positively as to the existence, rather than the possibility of the existence, of the veteran having a cardiac condition that they are capable of persuading the Tribunal to be satisfied on the balance of probabilities that the veteran suffer ischaemic heart condition at that time. Nor can Dr Collins’ impressive experience in forensic pathology and his conclusion that investigative and clinical examinations do not always result in a correct diagnosis, be such that in the circumstances of this case that it is of positive assistance in reaching a conclusion as to the likely presence of ischaemic heart disease. The fact that some of the 10,000 patients may not have been correctly diagnosed does not result in a conclusion that supports this veteran as suffering atherosclerosis which resulted in his death from an ischaemic heart condition. Finally, the mention on the death certificate is not conclusive evidence. It is a factor to be taken into account. However, the Tribunal in this case is persuaded more by the other stated evidence and is satisfied that it would be unsafe to rely on the death certificate to conclude that the ischaemic heart disease was a cause of the veteran’s death.
25. The Tribunal is persuaded by the evidence of Professor Harper, which is consistent with the evidence of both Drs Leitl and Hammond, both of whom determined only a minor presence of atherosclerosis, that atherosclerosis was not so severe that it was likely to have produced an insufficient blood flow to the heart muscle. The blood flow may have been reduced but there is no reliable evidence or material to substantiate that the flow was limited to the extent that it could be described as constituting an ‘insufficient’ flow as required by the SoP definition.
26. The application does not succeed on the basis that the veteran’s cause of death was ischaemic heart disease.
(B) Osteoarthrosis (Statement of Principles No 32 of 2005)
27. Osteoarthritis (sic) is also claimed as a separate condition. Osteoarthritis (sic) is mentioned on the death certificate as being a cause of the veteran’s death. Clause 3(b) of SoP 32 of 2005 sets out the definition of osteoarthrosis as follows:
For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.
28. The following factors are claimed as connecting osteoarthrosis to the veteran’s service:
(i)an inflammatory joint disease of the affected joint before the clinical onset of osteoarthritis of that joint (factor 6(a));
(ii)having a trauma to the affected joint within the 25 years before the clinical onset of osteoarthrosis in that joint (factor 6(f));
(iii)having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis of that joint (factor 6(h));
(iv)being obese for at least 10 years within the 25 years before the clinical onset of osteoarthrosis in that joint (factor 6(j)).
29. At the hearing Mr De Marchi added factor 6(c) (having an intra-articular fracture of the joint before the clinical onset of osteoarthrosis in that joint) and factor 6(d) (having haemarthrosis of the affected joint before the clinical onset of osteoarthrosis in that joint) to be considered.[20] The Tribunal is unable to see any relevance in factors 6(c) and (d) as there was no evidence substantiating the veteran as having suffered an intra-articular fracture or haemarthrosis (blood in the knee joint) of either knee before the onset of osteoarthrosis.
[20] Transcript, page 70.
30. Clause 9 of the SoP defines the following terms:
“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
“disordered joint mechanics” means maldistribution of loading forces on that joint resulting from;
(a)a rotation or angulation deformity of the long bones of the affected limb;
(b)a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb;
(c)necrosis of bone near the affected joint;
(d)amputation involving either leg; or
(e)a permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology;
“intra- articular fracture” means a fracture involving the articular surface of a joint;
“inflammatory joint disease” means rheumatoid arthritis, Reiter’s syndrome, psoriatic arthropathy, ankylosing spondylitis, or arthritis associated with Crohn’s disease or ulcerative colitis;
“trauma to the affected joint” means a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a)immobilisation of the joint or limb by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c)surgery to that joint.
31. There was no evidence of any trauma to the veteran’s left knee but there was evidence that he suffered trauma to the right knee before and during his service. It follows that while (i), (iii) and (iv) as set out in paragraph 28 above are able to be applied to both knees, (ii) can only apply to the right knee. The Tribunal notes that, at the time of his death, the veteran was in receipt of a pension paid at 30% of the general rate attributable to osteoarthrosis of both knees.
32. The Tribunal heard from the veteran’s widow, Mrs Lockhart, and from his daughter, Mrs Binyon. While Mrs Lockhart knew who the veteran was, and had seen him in the area in which they both lived as young people, they did not get to know one another until after the death of the veteran’s first wife in 1968. Mrs Lockhart told the Tribunal that the veteran was a real estate agent, a stock and station agent, and undertook valuations. He retired in 1994 at the age of 80 years. It was the evidence of the applicant that in his latter years of work the veteran had the assistance of a younger man to undertake the more strenuous parts of his employment (for example, walking to oversee the damage to crops, climbing over the stockyards). Mrs Lockhart said that the applicant had experienced pain in his knees from the time that she married him.[21] She told the Tribunal that the applicant gained weight in the period leading up to 1976 at which time she estimated he would have weighed between 18 and 20 stone.[22] Mrs Binyon said that it was impossible for her hands to touch when she hugged her father because of the size of his girth.
[21] Transcript, page 12.
[22] Transcript, page 18.
33. On 17 March 1994 the applicant completed a Lifestyle questionnaire.[23] He noted on the form and the evidence established:
[23] Exhibit R1.
(i)he didn’t sleep well and could not walk long distances because he suffered pain (from the osteoarthrosis of his knees);
(ii)he had become unable to play golf or bowls (sports in which he was previously involved);
(iii)he was unable to walk on rough ground (hampering his ability to undertake stock and crop valuations to the extent that he was obliged to take an assistant with him during the two to three years prior to his retirement to undertake walking on site crop valuations, sheep drafting, stock sales, etc);
(iv)that he used a walking stick since having a heart bypass operation;
(v)he was no longer able to mow the lawn;
(vi)that his wife had been undertaking more of the domestic work;
(vii)that from 1991 he was no longer able to participate in dancing; and
(viii)that he continued to play 18 holes of golf until 1984 and then nine holes until 1989 or 1990 and that he had ceased altogether in 1992.
34. He had surgery to replace one knee in 1993-1994 and the other in 1994‑1995. Mrs Lockhart described the two operations as being successful. Indeed, the veteran was so buoyed by the success of the first operation that he vowed to recommence playing golf. However, Mrs Lockhart said that while he may have had two or three rounds he found he was unable to continue playing.[24]
[24] Transcript, page 22.
35. Mrs Lockhart was uncertain as to when the veteran commenced using a walking stick. She first said that the veteran commenced using a walking stick prior to his retirement. Later she said about the time he underwent a knee replacement in 1993 or 1994 he commenced using a frame for support.
36. While no mention is made of it in the veteran’s entry medical notes, the evidence demonstrates that the veteran had long suffered from problems associated with his knees. The veteran is recorded in his service medical case sheet, in an entry dated 7 August 1942, as incurring an injury to his right knee by twisting it while playing football two days earlier.[25] He was hospitalised and discharged to his unit on 12 August 1942. The clinical notes associated with his hospitalisation record show that he had incurred an injury to his right knee prior to his enlistment for which he had been hospitalised on at least six occasions.[26] A report dated 16 September 1943 stated that the veteran had “marked osteoarthritis both knee joints, more marked in rt knee joint, owing to old injury …”[27]
[25] Exhibit R1, page 3.
[26] Exhibit R1, page 11.
[27] Exhibit R1, page 4.
37. The evidence demonstrates that the veteran was hospitalised from 7 August 1942 for a period of five days.[28] His circumstances do not meet the minimum 10 day period following onset as required by the clause 9 of the SoP definition of trauma. Therefore to succeed the evidence must demonstrate that medical intervention of the type nominated in the definition of trauma in clause 9 of the SoP occurred. Mr De Marchi requested the Tribunal to “… assume that if he is hospitalised, that implies an immobilisation of the joint.”[29] The Tribunal is satisfied that such a conclusion is warranted. It must be remembered that the veteran was being treated in 1942, long before the current advances in surgical appliances have reduced the need for reliance on rest as part of the treatment. However, it is not immobilisation of the knee joint alone which qualifies as trauma to the affected area, there must be some evidence of treatment of the type mentioned in the definition, that is, there must be evidence of application of splinting, administration of injections or surgery. There is no evidence of any of these procedures to be found in the medical notes of taken at the time.[30] Even taking account of the ameliorative provisions found in s 119 of the Act the Tribunal is unable to find as a fact something about which there is simply no evidence. The applicant is unable to meet the conditions of this provision in the SoP.
[28] Exhibit R1, page 3.
[29] Transcript, page 68.
[30] Exhibit R1, page 3.
38. T document, T4, page 8, records an entry dated 23 March 1941 that the veteran’s right knee cartilage occasionally slipped out.[31] However, not any of the five possibilities mentioned in the definition of ‘disordered joint mechanics’ are identified as the cause of the knee cartilage slipping. An entry referring to the veteran’s knee conditions dated 21 September 1943 records no deformity and no limitation of movement.[32] This confirms the applicant as not suffering disordered joint mechanics as defined in clause 9 of the SoP. The application cannot succeed on factor 6(h).
[31] Also mentioned in the medical report at the time of his discharge on 10 February 1944: Exhibit R1, page 19.
[32] Exhibit R1, page 7.
39. The Tribunal notes an entry dated 28 September 1943 on the veteran’s medical history records that the veteran was suffering “rheumatism at 6 years of age.”[33] One of the defined meanings contained in the clause 9 definition of ‘inflammatory joint disease’ is ‘rheumatoid arthritis’. However, the reference in the entry to ‘rheumatism’ is general and while it may include rheumatoid arthritis it does not necessarily do so. In this case it is likely, particularly given the descriptors used at the time, to be a reference to rheumatic fever. Added to this the doctor has recorded “no generalised joint pains subsequent to that time.”[34] The latter reference is to symptoms found in sufferers of rheumatoid arthritis rather than rheumatic fever. Given that there is no evidence to support the veteran as having suffered ongoing general joint aches to substantiate him as having suffered rheumatoid arthritis the Tribunal is not satisfied that the veteran suffered from that condition prior to undertaking eligible service. There is no other evidence which would result in the veteran’s circumstances satisfying the requirements of factor 6(a).
[33] Exhibit R1, page 11.
[34] Exhibit R1, page 11.
40. The Tribunal must consider the obesity factor 6(j). The first time osteoarthrosis of the knees is mentioned in the applicant’s medical reports is on 16 September 1943.[35] An x-ray taken on 23 September 1943 notes no radiological change to the left knee but early osteoarthrosis to the right knee.[36] Subsequent medical reports for that period note osteoarthrosis being present in both knees. The Tribunal accepts that the applicant suffered osteoarthrosis to both knees and that it is more probable than not, that the osteoarthrosis to both knees commenced during the veteran’s eligible service. However, there is no evidence that the veteran was obese as defined in clause 9 of the SoP for the requisite period preceding the onset of the osteoarthrosis condition. The veteran’s weight and height on 7 November 1940, being before he commenced his period of eligible service, was 190 pounds and 5 feet 10 inches.[37] This results in a BMI of 27.3. The veteran’s weight apparently increased during his service and on 28 September 1943 it was noted as being 14 stone 2 lbs,[38] resulting in a BMI of 28.3. The SoP definition of obese accords with the World Health Organisation database that a BMI of 30 or more is required before a person can be described as obese (utilising metric measurements for weight and height). The veteran, while he could be classified as pre obese, was not obese for at least 10 years before the clinical onset of osteoarthrosis. The application cannot succeed on factor 6(j) of the SoP. Therefore, the application does not succeed on the basis that the veteran’s osteoarthrosis was connected with his service.
[35] Exhibit R1, page 4.
[36] Exhibit R1, page 7.
[37] T documents, T4, page 6.
[38] Exhibit R1, page 11, repeated at page 12.
(C) Atrial Fibrillation (Statement of Principles No 20 of 2003)
41. Atrial fibrillation is listed on the death certificate as being a cause of death. The condition is defined in clause 2(b) of the SoP as follows:
For the purposes of this Statement of Principles, “atrial fibrillation” means a paroxysmal, persistent or permanent arrhythmia arising in the atria of the heart, causing disorganised atrial activity and an irregularly irregular ventricular response.
42. It is accepted that the veteran suffered atrial fibrillation. Dr Lowery noted the clinical onset as being December 1996.[39] Professor Harper said that atrial fibrillation may have contributed to the veteran’s poor cardiac function.[40] Death from atrial fibrillation is connected to a veteran’s service when it is connected with the veteran suffering from ischaemic heart condition at the time of clinical onset of atrial fibrillation (clause 5(b)). The statement of facts and contentions filed on behalf of the applicant did not mention which of the factors may be relevant. However, Mr De Marchi maintained in his oral submission that there was an inability to obtain appropriate clinical management for the condition (factor 5(k)) which resulted in a material contribution to or aggravation of the veteran’s atrial fibrillation.[41] For the latter factor to apply the applicant must have suffered the condition before or during (but not arising out of) his service.
[39] T documents, T6, page 27.
[40] Transcript, page 39.
[41] Factor 6 in the Statement of Principles No 20 of 2003: Atrial Fibrillation.
43. Dr Collins opined in his report of 17 March 2008 that the first mention of the veteran suffering from this condition was in the mid 1990s by Dr Hammond.[42] The Tribunal accepts this as the date of the clinical onset of the veteran’s atrial fibrillation condition. Dr Collins raised as a possibility that the aetiology of the disease may have arisen as a consequence of complications (being valvular heart disease) associated with the veteran suffering rheumatic fever during his war service. If this was the case then factor 5(a) of the SoP would be relevant, that is, the veteran suffered from valvular heart disease at the time of the clinical onset of atrial fibrillation. However, Dr Collins conceded in his report that there was no mention in the veteran’s medical records documenting him suffering rheumatic fever during his eligible service.
[42] Exhibit A2, page 3.
44. The Tribunal has found that the applicant did not suffer from an ischaemic heart condition so another possible connection between that condition and the clinical onset of atrial fibrillation is not able to be made (that is, excluding factor 5(b) of the SoP).
45. To succeed, Mr De Marchi’s submission as to the applicability of factor 5(k) and factor 6 of the SoP must involve a finding that the veteran suffered atrial fibrillation prior to or during his service. There is no evidence which supports this. The submission cannot succeed.
(D) Aortic Stenosis (Statement of Principles No 55 of 2002)
46. The current SoP defines aortic stenosis in clause 2(b) as follows:
For the purposes of this Statement of Principles, “aortic stenosis” means obstruction to flow across the aortic valve during left ventricular systole. This definition excludes:
(i) aortic stenosis due to rheumatic heart disease;
(ii)aortic valve sclerosis or aortic valve calcification that does not lead to obstructions of blood flow across the aortic valve;
(iii) obstruction of blood flow across the aortic valve;
(iv) congenital stenosis of aortic valve.
Mr De Marchi referred to the former SoP on this condition (No 6 of 2000). There is a more recent SoP which should be considered, being No 55 of 2002.
47. It is accepted that the applicant suffered aortic stenosis. The issue is whether there is a connection between the condition and the veteran’s war service. Clause 5 sets out the factors to be considered. Dr Lowery addressed the factors opining that factor 5(a) which is in the following terms is relevant:
The factors that must exist before it can be said that, on the balance of probabilities, aortic stenosis or death from aortic stenosis is connected with the circumstances of a person’s relevant service are:
(a)suffering from infective endocarditis before the clinical onset of aortic stenosis;
Clause 8 defines ‘infective endocarditis’ as meaning “… inflammation of the endocardium caused by infection with microorganisms.”
48. However, Dr Lowery opined that there was no evidence of the veteran suffering infective endocarditis (that is, inflammation of the lining, valves and muscle of the heart) before the clinical onset of aortic stenosis.[43] Therefore, the aortic stenosis cannot be connected to the veteran’s service.
[43] T documents, T6, page 24.
(E) Hypertension (Statement of Principles No 36 of 2003)
49. Hypertension, unrelated to ischaemic heart condition, while not mentioned on the death certificate as being a cause of the veteran’s death, nor mentioned in the applicant’s statement of facts and contentions, was claimed at the conclusion of the hearing as being relevant. This was the subject of written submissions from both parties after final addresses were given.
50. The current SoP defines hypertension in clause 2(b) as follows:
For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidence by:
(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure;
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
51. Professor Harper opined that the veteran suffered hypertension and that it was a contributing cause to the veteran’s death from cardiac failure.[44] Dr Hammond stated that the veteran reported having hypertension for approximately 30 years and had been treated for that condition commencing in the 1970s. There are no contemporaneous medical reports from that time. The earliest consistent clinical reports are from Dr Lowery.[45] Dr Lowery’s clinical notes demonstrate consistent entries to the veteran’s high blood pressure, commencing with an entry dated February 1982 where the veteran’s blood pressure is noted as being 220/100.[46] Subsequent entries confirm a continuing high blood pressure (15 July 1985, 23 August 1990, 5 December 1991, 19 and 26 January 1993, 17 June 1993, 29 July 1994).[47] The Tribunal is satisfied that the entries support the veteran as having a usual blood pressure reading where the systolic reading was greater then 140 mmHg and that the consequently the veteran suffered hypertension.
[44] Exhibit R4.
[45] Exhibit R3.
[46] Exhibit R3, page 2.
[47] Exhibit R3, pages 3 to 6.
52. It is claimed that factors 5(a), 5(m), 5(n) and 5(y) in clause 5 of the SoP are relied upon in support of relating the cause of death to the veteran’s eligible service. There is no evidence which suggests that the veteran’s systolic blood pressure was high at enlistment, during his service or at his discharge. There is therefore no evidence which could lead to a conclusion that the veteran’s service materially contributed to or aggravated any hypertension condition. Factors 5(n) and 5(y) are not therefore relevant (see factor 6). The submission on behalf of the applicant that s 9(1)(e) of the Act is relevant[48] is rejected because there is no evidence to support the veteran as suffering hypertension prior to his eligible service.
[48] Applicant’s Submission, dated 27 January 2009, paragraph 5.2.
53. Factor 5(a), which is as follows, is relevant:
The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are:
(a) being obese at the time of the clinical onset of hypertension;
Clause 8 of the SoP defines ‘being obese’ as:
“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres.
54. On behalf of the applicant it is also submitted that factor 5(m) is relevant:
an inability to undertake more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of hypertension …
Clause 8 of the SoP defines ‘a mildly strenuous level of physical activity’ as:
“a mildly strenuous level of physical activity” means any physical activity greater than 3 METS, where a “MET” is a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate …
55. In support of factor 5(m) it is submitted on behalf of the applicant that a lifestyle questionnaire completed by the veteran on 17 March 1994[49] demonstrates difficulties he was experiencing in moving consistent with a finding that he met the definition of ‘mildly strenuous level of physical activity’ contained in clause 8 of the SoP. The submission describes the answers in the questionnaire as providing ‘contemporary evidence’. The difficulty with this is that factor 5(m) requires the inability to have existed at least five years immediately prior to the clinical onset of hypertension. Since the veteran’s hypertension commenced in the 1970s, with the first clinical recording by Dr Lowery in 1982, it is impossible to find the inability preceded the onset of the condition. The Tribunal is satisfied that factor 5(m) of the SoP cannot be met. That leaves consideration of factor 5(a).
[49] Exhibit R1, page 24.
56. The Tribunal has already determined that the veteran was not obese at the time of his discharge from the services. The respondent accepts that at or by the time of the clinical onset of his hypertension in the early 1970s the veteran had become obese.[50] It reached that conclusion having regard to the veteran’s measurements at the time he entered the services compared to later readings and applying those figures to the formula mentioned in the definition of obesity. While there is no clinical evidence to confirm a time of clinical onset of the veteran’s hypertension, there is no reason not to accept the date of the early 1970s given by the veteran to Dr Hammond. There is no evidence which suggests that the veteran suffered hypertension prior to the 1970s.
[50] Respondent’s Submission, dated 2 February 2009, paragraph 22.
57. While there are no weight measurements available for the period between the veteran’s discharge from the services and Dr Lowery’s note of 1982 the Tribunal is satisfied that the evidence of the applicant and the veteran’s daughter as to the veteran’s weight and girth that the veteran had become obese by at least the mid 1970s. The Tribunal accordingly accepts that it is reasonable to conclude that obesity was present at the time of the clinical onset of hypertension. That being the case then the veteran satisfies the requirements of clause 5(a). This is a factor which must be satisfied to allow the Tribunal to determine whether there is in fact a connection between his service and his condition. It is not determinative of the existence of a connection. For such a finding in the case of the death of a veteran a provision of s 8 of the Act must be satisfied.
58. The respondent submits that the veteran’s weight was a problem before his service. In the respondent’s submission whatever the cause of the veteran’s weight problem – be it “lifestyle, diet or health, it was a problem unrelated to his eligible service.”[51] It is clear that the veteran had an extended working life, not retiring until he was 80 years of age, that his work as a stock agent and valuer required him to be active in inspecting crops for insurance claim purposes, clambering over stock yards and his leisure activities of dancing, bowls and golf were physically demanding. It followed, in the respondent’s submission, that there was no restriction to the veteran’s physical activity as the result of his post service obesity.
[51] Respondent’s Submission, dated 2 February 2009, paragraph 23.
59. On behalf of the applicant it is submitted that a causal factor in the veteran developing obesity is the applicant’s osteoarthrosis condition. The respondent has accepted this condition as applicable to both knees and paid a pension to the veteran at the rate of 30%. However, for the reasons given, the Tribunal is not satisfied that osteoarthrosis arises from the applicant’s eligible service. That finding consequentially leaves the Tribunal satisfied that obesity cannot have contributed to the applicant’s hypertension as being war caused. On the balance of probabilities, the Tribunal is satisfied that the veteran’s hypertension is not connected with his service.
Tribunal’s Decision
60. The Tribunal is satisfied that the applicant does not succeed on the ischaemic heart disease, the atrial fibrillation, the aortic stenosis, the osteoarthrosis or hypertension conditions. For the stated reasons the decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: .....................................................................................
Associate Grace HorzitskiDate of Hearing 14 January 2009
Date of Decision 26 October 2009Solicitor for the Applicant Mr D De Marchi, De Marchi & Associates
Solicitor for the Respondent Mr K Rudge, departmental advocate
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