Johnson and Repatriation Commission
[2004] AATA 602
•15 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/457
VETERANS' APPEALS DIVISION )
Re MOLLY JOHNSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date15 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension - determination of cause of death – standard of proof – death from carcinoma of prostate – application of Statements of Principles - no reasonable hypothesis of relevant relationship to eligible war service - death not war-caused
Administrative Appeals Tribunal Act 1975 ss 34B and 37
Veterans’ Entitlements Act 1986 ss 6A, 7, 8, 11, 14, 120(1), 120(3), 120(4), 120A
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
15 June 2004 Mr RG Kenny, Member Background
1. Allan Johnson (the veteran) served in the Royal Australian Navy during World War II from 29 July 1943 until 6 June 1946 and that service constituted operational service and eligible war service in accordance with sections 6A and 7, respectively, of the Veterans’ Entitlements Act 1986 (the Act). He died on 14 October 1998 and, on 22 September 2000, Molly Johnson, his widow and a dependant, as defined in section 11 of the Act, lodged a claim, under section 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 17 November 2000 and, in turn, by the Veterans’ Review Board, on 13 February 2002. On 27 May 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. The Administrative Appeals Tribunal Act 1975 (the AAT Act) makes provision for a hearing to be conducted in the absence of the parties. In that regard, section 34B of the AAT Act reads:
“34B If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.”
3. Both the applicant and the respondent consented to this matter being determined without a hearing and, in accordance with the terms of section 34B of the AAT Act, I am satisfied that it is appropriate to proceed in that manner.
4. Material available to the Tribunal comprised:
§the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T1 – T6);
§medical reports of Dr Peter Grant, Senior Medical Officer Compensation, dated 29 September 2002, 10 October 2002, 12 November 2002, 29 November 2002 and 24 January 2003;
§medical report of Dr John Rivers, Cardiologist, dated 13 December 2002;
§medical reports of Dr Robert Hynes, Consultant Physician, dated 31 July 1998 and 4 September 2002;
§medical report of Dr Maxim Wilson, Physician, dated 25 August 1998;
§medical report of Dr John Yaxley, Neurologist dated 18 August 1998;
§clinical notes from the Bellara Family Medical Practice provided by Dr Elizabeth Flynn;
§medical reports of Dr Flynn, dated 20 August 2001 and 3 May 2002;
§clinical notes provided by the Caboolture Hospital; and
§statements completed by the son and daughter of the applicant and veteran, Mr J Johnson and Ms Jan Kelly, dated 23 September 2002 and 22 September 2002, respectively.
Issues and Legislation
5. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met and, insofar as is relevant in this matter, paragraph 8(1)(b) of the Act reads:
“(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) …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”
6. Where, as in this case, the veteran rendered eligible war service in the form of operational service, the standard of proof applicable to the determination is set out in subsection 120(1) of the Act which reads:
“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.”
7. The operation of that provision is affected by the terms of subsection 120(3) of the Act and 120A of the Act. Those provisions read:
“120(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
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;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
120A(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
120A(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);
that upholds the hypothesis.
120A(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
8. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority. However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” as that term appears in subsection 120A(1) of the Act applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. The standard of proof in determining the kind of death or the condition which was responsible for causing the veteran’s death is that provided for in subsection 120(4) of the Act. This requires such matters to be determined on the balance of probabilities: see Fogarty v Repatriation Commission [2003] FCAFC 136 at par [34] and Benjamin v Repatriation Commission (2001) 70 ALD 622 at pars [53] – [54].
9. Accordingly, the first issue for the Tribunal to determine is the underlying cause of the veteran’s death and, in this matter, the respondent submitted that it was carcinoma of the prostate with metastases. In contrast, the submission of the applicant is that contributory causes of the veteran’s death were ischaemic heart disease and chronic obstructive airways disease.
Consideration
10. The veteran died on 14 October 1998 at the Caboolture Hospital and the death certificate, dated 23 October 1998, lists the following as the cause of death:
(a) Respiratory failure
(b) Terminal lobar pneumonia; and
(c) Carcinoma prostate with metastases.
11. Dr Elizabeth Flynn from the Ballara Family Medical Practice was the veteran’s general practitioner in the period from 30 June 1998 until just before his final hospital admission. In a report dated 3 May 2002, Dr Flynn said that she first attended the veteran when he presented with what she thought was an acute exacerbation of chronic obstructive airways disease and she said that he had a further exacerbation of this on 19 July 1998 and that, at that time, his illness was complicated by heart failure and acute on-chronic renal failure. She said that his condition deteriorated over the next two months and noted:
“At the end, Mr Johnson had multiple organ failure and was a very sick man and I am unable to say what was the original or principal cause of death.”
12. In a subsequent report, dated 23 May 2002, Dr Flynn expressed the opinion that chronic obstructive airways disease probably contributed to the veteran’s death but she also indicated that, at the time of his death, he had renal failure, heart failure, widespread metastatic prostate cancer and general debility. She said that he was an extremely sick man who would have died with hypostatic pneumonia even if he had a healthy pair of lungs.
13. In relation to ischaemic heart disease, Dr Flynn wrote:
“In July, 1998 Mr Johnson presented with severe shortness of breath, orthopnoea and nocturnal dyspnoea not responding to bronchodilators. A Chest xray showed heart failure i.e. an enlarged heart and fluid throughout the lungfields. An Echocardiogram done at Peninsular Hospital was consistent with a dilated cardiomyopathy seen in end stage hypertensive heart disease (see Dr Maxim Wilson’ letter dated 25/08/98). A follow-up chest xray on the 27/08/98 after treatment was reported as not showing any heart failure. Unfortunately I do not have those xrays or copies of the reports – perhaps Mrs Johnson has them or they are still at one of the hospitals. I did not attend Mr Johnson in his final days as he was hospitalized so I cannot comment on the death certificate.”
14. Dr Flynn continued by indicating that the veteran suffered multi-organ failure, that his smoking history and hypertension contributed to his death and she noted that he had widespread prostatic cancer involving the base of his bladder and the right ureter worsening his kidney failure and she expressed the opinion that this was the principal cause of his death.
15. The veteran’s former general practitioner, Dr John Feros of the Toowong Medical Centre, provided a report dated 11 January 1999 in which he referred to the removal of the veteran’s left kidney in 1971 because of cancer and he continued:
“It would seem from his death certificate that it was prostate cancer, and not recurrent kidney cancer, which contributed to his death. However, I note also that chest x-rays at the time of the kidney operation indicated respiratory problems at the time. His cause of death was given as respiratory failure and lobar pneumonia, so the 1971 x-ray may be of significance.”
16. Dr Maxim Wilson, Physician, treated the veteran when he was in hospital in August 1998 and, in a report dated 25 August 1988, he said that the veteran had been well until July when he got acute bronchitis and was found to have had an enlarged heart and that further observations led to the diagnosis of prostate cancer and renal failure due to obstruction. He referred to a surgical procedure conducted by Dr John Yaxley on 14 August 1998 with the insertion of a ureteric stent into his solitary right kidney. Dr Wilson entered the following diagnoses:
“1. Prostatic carcinoma with widespread skeletal metastases.
2. Severe chronic renal failure due to a severe insult to his solitary right kidney.
3. Hypotension probably due to hypertensive cardiomyopathy.
4. Anaemia.
5. Right hydronephrosis from ureteric obstruction.”
17. Dr Robert Hynes, Consultant Physician, saw the veteran in July 1998 and completed a report dated 31 July 1998. He referred to the need for urgent attention to the obstructive uropathy which he thought may have been related to carcinoma of the prostate. He continued:
“He certainly needs the increased dose of Lasix because he has quite wet looking lungs on his chest X-ray despite the COAD, and of course he has that cardiomegaly. I asked Dr Yaxley to see him urgently and he should be attempting a stent on his Friday list.”
18. Dr John Yaxley, Urologist, completed a report on 18 August 1998 in which he said:
“On clinical examination he had a locally advanced T4 carcinoma of the prostate extending into the base of the trigone. His PSA was 120.
I performed a transurethral resection of the trigone and floor of the prostate resecting widely out over the area of the right ureteric orifice but despite this the invasive prostatic malignancy totally obscured the entry of the ureter into the bladder and therefore a ureteric stent was unable to be inserted. I subsequently placed Alan on a course of oral Androcur and Dexamethosone and combined with a TURP this brought his creatinine down to a level of 0.43. The histology confirmed a poorly differentiated adenocarcinoma of the prostate, Gleasons grade 4 + 5.
I discussed the options of management in detail with Alan and his wife and a right nephrostomy was subsequently inserted. On the 14.8.98 a combined retrograde and antigrade approach enabled a ureteric stent to be inserted. The guide wire was placed down the nephrostomy tube into the bladder whereby it was retrieved and the ureteric stent inserted.
Alan had no significant post operative sequelae apart from his episodes of dizziness and postural hypertension and I do thank you for your management of his problem. Alan had his first dose of Lucrin Depot as an inpatient and the Androcur was ceased 10 days after this initial injection.”
19. On 4 September 2002, Dr Hynes completed a further report in which he said:
“He presented in October 98 in a debilitated condition and died in the Peninsula Private Hospital with a lobar pneumonia as the terminal event, but it was his general condition caused by his carcinoma of the prostate with his widespread skeletal metastases and his chronic renal failure compounded by the prostate causing an obstruction and of course in the background we have the renal cell carcinoma which necessitated the removal of his left kidney.”
20. In evidence were clinical notes from the Caboolture Hospital completed at the time of the veteran’s admission on 4 October 1998 as well as an ambulance report completed at that time. Dr Peter Grant, Senior Medical Officer, Compensation, completed several reports in which he commented on the cause of the veteran’s death and he also wrote to Cardiologist, Dr John Rivers, on 29 September 2002 inviting him to comment on whether or not the veteran suffered from ischaemic heart disease.
21. In a report dated 10 October 2002, Dr Grant wrote:
“The clinical notes obtained from Dr Elizabeth Flynn and the letter by Dr Wilson, Physician, dated 25 August 1998 refer to the late veteran being treated for a bout of acute bronchitis with an oral steroid in August 1998. Mr Johnson appears to have recovered from that episode but by then he was already suffering from progressive renal failure as a result of prostatic carcinoma obstructing the ureter to his single right kidney (see my earlier opinion dated 3 June 2002).
2. I note that Dr Flynn listed ‘COAD’ as an active clinical problem and that Dr Hynes, Physician, refers to ‘COAD’ in his report of 31 July 1998. It is unclear to me at least as to the exact context in which he came to mention COAD – his comments would suggest that the late veteran was suffering from pulmonary oedema (‘quite wet looking lungs on his chest x-ray’) but he added ‘despite the COAD’ and went on to add that ‘of course he has that cardiomegaly’.
3. The reports including those above are equivocal as to establishing ongoing problems from chronic obstructive airways disease in my opinion. In that regard, the reports you mention in your minute including Dr Flynn’s clinical notes mainly relate to the period July to September 1998 when the late veteran was already unwell from a number of other conditions as listed above.
4. I am particularly concerned as to the absence of hospital notes from Caboolture Hospital as well as a report from Dr Hynes as to events during the last admission. The report by Dr Yaxley, Urologist, of 18 August 1998 makes no mention of chronic obstructive airways disease or other lung disease.
5. I would have expected a reference if chronic obstructive airways disease was a significant problem as the late veteran underwent a transurethral resection of the bladder floor (trigone) as well as the prostate around that time by Dr Yaxley and it would have posed an anaesthetic risk.”
22. In that report, Dr Grant recommended that the terminal illness notes be obtained from Caboolture Hospital. Following the receipt of these, Dr Grant completed a further report on 12 November 2002 in which he wrote:
“The medical officer’s admission notes of 4 October 1998, whilst primarily discussing pain in the left upper quadrant of the abdomen, also mention that Mr Johnson suffered from shortness of breath regularly without recent change. In contrast, the Queensland Ambulance Service report stated that the late veteran did not suffer from shortness of breath and that he was not in distress (albeit whilst breathing ‘100% oxygen’ (sic). The medical officer noted mild respiratory distress. ‘COAD’ was recorded as a diagnosis.
2. Investigations performed on admission showed Mr Johnson to be in renal failure with associated electrolyte changes and moderate anaemia. Blood cultures grew Staphylococcus aureus consistent with a diagnosis of staphylococcal septicaemia whilst urine microscopy and culture was consistent with a urinary tract infection (although urine culture was negative due to antibacterial substances being present).
3. The subsequent history gleaned from the hospital notes makes no mention of chronic obstructive airways disease as an active condition. The late Mr Johnson was treated with regular doses of subcutaneous morphine as well as oral narcotic in the form of MS Contin. His condition gradually deteriorated with coma documented on 12 October 1998 as being a relatively constant feature. Subcutaneous morphine infusions were commenced on that day and all oral intake stopped. The Pain Chart from 7 to 9 October 1998 provides a graphic description of the pain.
4. In my opinion, whilst chronic obstructive airways disease was noted on admission, the terminal admission notes make no discrete references to that condition that might be reasonably taken to mean that it actively contributed to death either directly or by contributing to respiratory depression. I consider that the documented history is entirely consistent with progressive renal failure, pneumonia and septicaemia associated with progressive metastatic prostate cancer leading to death. The report by Dr Hynes to Dr Flynn dated 14 October 1998 makes no mention of chronic obstructive airways disease as an active condition leading to Mr Johnson’s demise.”
23. In relation to ischaemic heart disease, Dr Grant completed a report on 29 November 2002 in which he wrote:
“2. On reviewing the information obtained since June 2002, I cannot find any information that lends support to the diagnosis of ischaemic heart disease. Neither Dr Wilson, Physician, in a letter to the local medical officer, Dr Flynn, dated 25 August 1998, or Dr Hynes, Physician, in a report to the Department dated 4 September 2002 make any mention of ischaemic heart disease.
3. Der [sic] Wilson describes mild left ventricular dilatation with mild global impairment of systolic function consistent with a dilated cardiomyopathy. This was shown on echocardiogram to be associated with mild circumferential thickening of the wall of the left ventricle or mild concentric left ventricular hypertrophy. The left ventricular ejection fraction was reduced to a minor extent.
4. Cardiomyopathy is a distinct condition from ischaemic heart disease and is covered by its own Statements of Principles. Mr Johnson suffered from longstanding hypertension. The late veteran was normotensive on enlistment and throughout eligible service as outlined in the first paragraph of the opinion dated 3 June 2002. The report of Dr Jeff Watson, Urologist, dated 21 June 1971 lists an elevated blood pressure reading at 155/95. I am unable to find anything further to indicate the likely clinical onset of hypertension but it almost certainly was after completion of eligible service, in my opinion.
5. The changes affecting the heart are described in an echocardiogram report at Advocacy folio 53 dated 30 July 1998. This investigation was arranged by Dr Flynn with the recorded clinical information referring to congestive cardiac failure, chronic renal failure, hypertension, and cardiomegaly on chest x-ray. There is no mention of ischaemic heart disease.
6. In my opinion, Mr Johnson most likely was suffering from hypertensive cardiomyopathy at the time he developed acute-on-chronic renal failure as a result of disseminated malignant neoplasm of the prostate. The changes on echocardiogram are entirely consistent with such a diagnosis. It is unclear at least to me on what grounds Dr Flynn reached the conclusion that the late veteran was suffering from ischaemic heart disease. I recommend that you refer the material to a cardiologist for an opinion on this issue as well as its role, if any, in death.
Did ischaemic heart disease make a significant contribution to death?
7. On reviewing the terminal illness notes from Caboolture Hospital, I do not consider that it is reasonable to assume that the left upper quadrant pain was due to ischaemic heart disease. An electrocardiogram on admission on 4 October 1998 showed a sinus tachycardia with no acute changes being seen. No medications were being taken specific for cardiac ischaemia on admission nor were there any episodes of acute chest pain attributed to ischaemic heart disease. A chest x-ray on 4 October 1998 showed the heart size to be within normal limits. The subsequent course of events including the marked deterioration on 12 October 1998 bear no characteristics to suggest that this was due to a cardiac event let alone ischaemic heart disease, in my opinion.”
24. As a result of that report, the matter was referred to Cardiologist, Dr Rivers, who provided a report on 13 December 2002. It reads:
“…There are two comments in the notes of admissions and one in a Care Summary suggesting that the patient had ischaemic heart disease but none of them actually referred to any evidence that that was the case other than history given by the patient. The admission notes were however related to admissions for other purposes and simply mention the possibility of ischaemic heart disease and heart failure as a background medical problem. The ECG provided is showing some non-specific ST change and minor intraventricular conduction delay but would contain no features that would indicate a high likelihood of coronary disease. The Echo Report is probably the most important piece of information. This shows a moderate degree of global LV dysfunction. These changes could be consistent with either a cardiomyopathy or underlying coronary artery disease. There is no reference in any of the notes of the patient experiencing episodic chest pain.
In summary, review of the documentation would indicate that he definitely did have some form of cardiac disease, but the information provided would not allow a definite discrimination between a cardiomyopathy and coronary disease. In the context of the history that is provided by two admitting medical officers, it might seem more likely that the diagnosis of the coronary disease was present than a cardiomyopathy without any details of the evidence that is speculative. The ECG does not really provide evidence in favour of either diagnosis. I am afraid the information that was available was relatively scant, so the conclusions are somewhat indefinite and based on some degree of speculation from the evidence. If he did have coronary artery disease, then it would appear this may have been involved as a terminal event. He was obviously in a more premorbid state with respect to his cancer situation and that was the primary problem leading to his death but a cardiac arrhythmia potentially related to coronary disease is often the terminal event in that scenario. I trust this provides the information that will be useful to your review of this case.”
25. After reading that report, Dr Grant expressed a further opinion in his report dated 24 January 2003 in which he said:
“I can add nothing to what Dr Rivers states in his report – he points to the paucity of information preventing a firm diagnosis of coronary artery disease. I am unable to provide more than that already stated in the three opinions already on file.”
26. On the medical evidence summarised above, I am satisfied that the underlying cause of the veteran’s death was the effect upon him of his carcinoma of the prostate with metastases. In that regard, I am persuaded by the analysis provided by Dr Grant and to the absence of any clear diagnosis of ischaemic heart disease or to the impact upon the veteran at the time of his death of any chronic obstructive airways disease. It follows that it is to that prostate condition which the causative provisions of the Act, outlined above, must be directed.
27. The Repatriation Medical Authority has published Instrument No 84 of 1999 as a Statement of Principles concerning malignant neoplasm of the prostate. It was dated 9 November 1999 and was in force when the applicant’s claim was lodged with the Repatriation Commission. The Instrument was amended on 9 November 1999 by Instrument No 69 of 2002. The amending Instrument substituted a new definition of “animal fat” into the Statement of Principles. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the prostate with any of the circumstances of the veteran’s service are:
“(a) spraying or decanting a herbicide containing 2,4-dichlorophenoxyacetic acid (2,4-D) or 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of malignant neoplasm of the prostate; or
(b) being on land in Vietnam or at sea in Vietnamese waters, for at least 30 days, at least five years before the clinical onset of malignant neoplasm of the prostate; or
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or
(d) inability to obtain appropriate clinical management for malignant neoplasm of the prostate.”
28. The procedure to be adopted in giving effect to the Statements of Principles was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:
"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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
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. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
29. No specific submissions were made by the applicant or on her behalf in respect of the relationship of carcinoma of the prostate to the veteran’s service. This is not surprising because the thrust of the applicant’s submission was that the cause of death was related to other conditions. However, there is no material before the Tribunal which points to any such hypothesis. Nevertheless, I have given consideration to the factors in the relevant Statement of Principles. These are set out above. Again, there is no material before the Tribunal which points to any of those factors. Accordingly, even if there were an hypothesis of a relationship raised in this matter, any such hypothesis is not reasonable. As there is no reasonable hypothesis of a relevant relationship raised between the condition which caused the veteran’s death and his eligible service, in accordance with subsection 120A(3) of the Act, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was war-caused.
Decision
30. The Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateThe Matter was Heard on the Papers
Date of Decision 15 June 2004Solicitor for the Applicant Mr D Stibbe, Files, Stibbe & Associates
For the Respondent Mr M Smith, Departmental Advocate
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