Jenkin and Repatriation Commission

[2006] AATA 1030

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1030

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/1063

VETERANS'     APPEALS         DIVISION

Re:         LORNA MARGARET JENKIN

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             1 December 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS - widow’s entitlement - death from ischaemic heart disease and subarachnoid haemorrhage - hypertension and passive smoking - whether war-caused

Veterans’ Entitlements Act 1986 ss 8(1), 119 (1)(h), 120(4), 120A

Fogarty v Repatriation Commission (2003) 37 AAR 363
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

1 December 2006  G.D. Friedman, Senior Member

1.      Lorna Jenkin, widow of Uttley Hugh Jenkin (the veteran), has sought review of a decision by the Veterans’ Review Board (VRB) dated 16 August 2005, affirming a decision of a delegate of the Repatriation Commission dated 29 March 2004, to refuse a claim for war widow’s pension because the veteran’s death was not related to his service.

BACKGROUND

2.      The veteran was born on 3 September 1922.  He served in the Royal Australian Air Force (the RAAF) from 4 April 1941 to 12 April 1946 as a photographer.  As he served in New Guinea the whole of his service constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).

3.      The veteran died on 29 January 2002.  The cause of death was certified as:

·           acute myocardial infarction – 1 minute;

·           ischaemic heart disease – 16 years; and

·           subarachnoid haemorrhage – 5 days.

4.      At the time of his death the veteran was in receipt of a disability pension of 80 per cent of the general rate for the following conditions, which were accepted as service‑related:

·Hodgkin’s Disease (now Hodgkin’s Disease with testicular radiation atrophy);

·chronic solar skin damage;

·non-melanotic malignant neoplasm (basal cell);

·bilateral sensorineural hearing loss; and

·plantar fasciitis of the right foot.

The following conditions were not accepted as being service-related:

·osteoarthritis of hips;

·osteoarthrosis (multiple sites);

·hypertension;

·alopecia;

·localised osteoarthrosis of the left hip; and

·localised osteoarthrosis of the right.

THE ISSUE

5.      The issue before the Tribunal is whether the veteran’s death was war‑caused as a result of hypertension or exposure to passive smoking.

EVIDENCE

6.      Mrs Jenkin told the Tribunal that she met the veteran in 1950 and he was not a smoker, and she assumed he had not smoked during his service.  She said that he had told her he associated with RAAF personnel who were smokers, and that smoking occurred in tents shared by the veteran, although she said that the veteran did not indicate to her that smoking by others affected his health.  She gave evidence that the veteran was required to carry heavy photographic equipment and install it in aircraft, and that he had described conditions in New Guinea as difficult and stressful.

7.      Mrs Jenkin stated that the veteran had been treated for hypertension since the early 1950s and had been prescribed with various types of blood pressure medication.  She gave evidence that the veteran had a heart attack in 1956 and a subarachnoid haemorrhage in 1957.  Mrs Jenkin stated that the veteran was diagnosed with Hodgkin’s Disease in 1956 and developed side-effects which lasted for the rest of his life. 

8.      Dr J. D’Souza, Departmental Medical Officer for the Department stated in a report dated 3 July 2006 (Exhibit R1) that the primary cause of death was ischaemic heart disease, resulting in ventricular fibrillation, acute myocardial infarction and acute renal failure.  He said that a contributory factor was subarachnoid haemorrhage, but that there was no evidence that Hodgkin’s Disease contributed to the death.

9.      Dr F. Morgan, Senior Medical Officer (Appeals) for the Department, stated in a report dated 17 October 2006 (Exhibit R3) that he examined relevant clinical notes and concluded that the veteran’s heart problems were first identified in August 1986, so that this would be the date of clinical onset of ischaemic heart disease.  He said that hypertension was first noticed in the 1950s, and the earliest record is August 1960, which would be the latest date of clinical onset of that condition.  The veteran’s blood pressure reading on discharge from the RAAF in 1946 was within the normal range as defined in the relevant Statement of Principles (SoP), and there is no indication in the medical records that his reading on enlistment, or during service, was elevated.

10.     Dr R. Webster, a general practitioner in Horsham from January 1953 to December 1972, said in an undated statement (T6) that the veteran was under his care during this period.  Dr Webster noted that he had treated the veteran for hypertension continuously over 20 years from the early 1950s, and stated:

…The hypertension would have been directly related to the stated causes of death of myocardial infarction, ischaemic heart disease and subarachnoid haemorrhage.  I was not aware then of the history of hypertension prior to 1953 but it may well have developed in relation to his war service. 

11.      The medical evidence suggests that the date of clinical onset of subarachnoid haemorrhage was about 1957.                 

CONSIDERATION OF THE ISSUES

12. Section 8(1) of the Act provides:

8(1)Subject to this section…, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

13.      The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s 120A of the Act.  It provides:

120A(1)This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

…

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)    a determination of the Commission under subsection 180A(2);

…

14.      The principles to be applied, in cases where s 120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person…

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)….

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP…

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If the Tribunal is so satisfied, the claim must fail…

15.      In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:

…

(a)      First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…

(b)      Next, the AAT was required to determine on balance of probabilities what “kind of death” Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death.

(c)      If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death".

…

In following the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Jenkin’s husband was a veteran, the veteran has died and Mrs Jenkin is his widow.  In relation to a determination of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the causes of death were acute myocardial infarction, ischaemic heart disease and subarachnoid haemorrhage.

16.      On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran includes ischaemic heart disease (identified in SoP Instrument N° 53 of 2003 as amended by Instrument N° 9 of 2004); and subarachnoid haemorrhage (Instrument N° 39 of 2003).

17.      The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities, under s 120(4) of the Act. There was no dispute between the parties that the veteran suffered from the conditions listed on the death certificate.

18.      As there are SoPs in force, the Tribunal is required to apply the methodology in Deledio to the kind of death.  In respect of the first step, the Tribunal finds, after taking into account all relevant matters, that the material points to a hypothesis connecting the death to the circumstances of the particular service rendered by the veteran.  In respect of the second step from Deledio, relevant SoPs are in force.

19.      In respect of the third step from Deledio, the requirement is for an opinion to be formed as to whether the hypothesis is reasonable.  That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him.  If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.  In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at paragraph 54:

…

If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…

20.      For ischaemic heart disease (Instrument N° 53 of 2003 as amended by Instrument N° 9 of 2004) relevant factors are:

5(a) the presence of hypertension before the clinical onset of ischaemic heart disease;

…

(g) immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1 000 hours before the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere did not end more than five years before the clinical onset of ischaemic heart disease;

…

For subarachnoid haemorrhage (Instrument N° 39 of 2003) the relevant factor is:

5(a) the presence of hypertension before the clinical onset of subarachnoid haemorrhage;

…

21.      The available medical records and the evidence from Mrs Jenkin about high blood pressure and exposure to cigarette smoke during service point to the hypotheses being raised, so the material and evidence are consistent with the template found in the relevant SoP and therefore the hypothesis is reasonable.

22.      In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.  The Tribunal accepts the medical evidence that the date of clinical onset of ischaemic heart disease was 1986, and that Mrs Jenkin stated that the veteran did not complain that smoking by others affected his health.  There is no material to suggest that the veteran was immersed in an atmosphere with a visible tobacco haze in an enclosed space for at least 1000 hours before clinical onset of the condition, or that the last exposure to that atmosphere did not end more than five years before clinical onset (factor 5(g) of Instrument N° 53 of 2003).

23.      In relation to hypertension (factor 5(a) of Instrument N° 53 of 2003 and factor 5(a) of Instrument N° 39 of 2003), the Tribunal accepts Mrs Jenkin’s evidence about the veteran telling her that service in New Guinea was stressful.  However the Tribunal also accepts the material contained in the medical records that the blood pressure reading taken on discharge from the RAAF was not elevated.  There is also no reference in the medical records to hypertension during service, so the veteran did not have permanently elevated readings of blood pressure, or other relevant symptoms, that would satisfy the definition of hypertension in Instrument N° 35 of 2003 (hypertension).  Therefore, although the diagnosis of hypertension in the early 1950s preceded clinical onset of ischaemic heart disease and subarachnoid haemorrhage the Tribunal finds that there is no causal connection between the veteran’s service and hypertension.

24.      For these reasons, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between the conditions causing the veteran’s death and operational service during the relevant period.  Therefore, the hypothesis cannot be sustained.  It follows that the fourth step from Deledio is not satisfied.

25.      The Tribunal takes into account the beneficial nature of the Act, the passage of time, the deficiency in official records and that direct evidence from the veteran was not possible (s 119(1)(h) of the Act).  However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1)(h) cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that there is no evidence of the facts necessary to support Mrs Jenkin’s application. Therefore, s 119(1)(h) of the Act does not assist her such as to enable the Tribunal to find in her favour, and the claim does not succeed.

DECISION

26.      The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  1 November 2006
Date of decision:  1 December 2006

Advocate for applicant:                Self-represented
Advocate for respondent:            Mr R. Douglass
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs