Kilpatrick and Repatriation Commission - [2002] AATA 638

DECISION AND REASONS FOR DECISION [2002] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1074
VETERANS'       APPEALS     DIVISION
  Re:         DOROTHY JEAN KILPATRICK
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             30 July 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – widow's entitlement – glioblastoma multiforme – smoking - chronic obstructive airways disease - whether chest infection accelerated death - whether death war-caused - whether Statement of Principles satisfied
Veterans' Entitlements Act 1986 s8, s120, s120A
Doolette v Repatriation Commission (1990) 21 ALD 489
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Gorton (2001) AAR 370
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR

REASONS FOR DECISION

30 July 2002 M.J. Carstairs, Member

This is an application by Dorothy Jean Kilpatrick (the applicant) for review of a decision of the Veterans' Review Board (the VRB) made on 27 June 2000. The VRB affirmed a decision of the Repatriation Commission (the respondent) that the death of the applicant's husband (the veteran) in 1986 from the effects of a malignant neoplasm of the brain, known as glioblastoma multiforme, was not due to war service.
At the hearing Mr D. Hyde of counsel, instructed by Di Marchi and Associates, solicitors, represented the applicant and Mr G. Purcell of counsel represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal also had before it exhibits marked A1 for the applicant and marked R1 to R4 for the respondent.
BACKGROUND
The veteran was born on 20 November 1920. He died on 6 July 1986 at the age of sixty-five from the effects of glioblastoma multiforme, a vigorous and usually fatal brain tumour. He had presented in June 1986 with a five-day history of confusion and behavioural change and a craniotomy was performed which revealed the primary brain tumour. The veteran suffered a decline on 4 July 1986 while still in recovery, with severe headache, elevated temperature and blood pressure, and raised intracranial pressure. A computed tomography scan (CT scan) identified brain haemorrhage and further treatment was withheld. Death occurred two days later. The death certificate (T12) dated 7 July 1986 cited glioblastome multiforme as the disease that directly led to death and no antecedent causes were identified in the certificate.
The veteran served in the Royal Australian Navy from 14 September 1943 to 14 June 1946 and had rendered operational service for the purposes of the Veterans' Entitlements Act1986 (the Act). During his service he was a stoker, principally on mine sweepers serving outside territorial waters. He had, as accepted disabilities under the legislation, bilateral otitis externa and otitis media. He also had as accepted, for treatment purposes only, but not as related to war service, the condition of pulmonary tuberculosis. The applicant and the veteran met in 1944 and married in 1946.
The applicant claimed pension in respect of the veteran's death on 2 September 1986 (T5). However, a VRB decision dated 6 July 1988 affirmed the decision of the respondent that the applicant did not qualify. On 3 May 1999 the applicant again claimed in respect of her husband's death. Her claim was again rejected by the VRB in its decision dated 27 June 2000. The applicant appealed to this Tribunal on 8 September 2000.
EVIDENCE
The applicant gave evidence that the veteran had part of his lung removed in 1953 after being diagnosed with tuberculosis. She said her husband was a heavy smoker who smoked until his death. She said that he was noticeably limited by breathing problems and he was easily exhausted. She said that she was told when he was admitted to hospital with the brain tumour that there was no hope for him and he could only be made as comfortable as possible. The applicant said that the veteran was totally deaf in one ear and took aspirin for his ear condition.
Ms B. Clarkson, the veteran's daughter, gave evidence that her father was always short of breath and was unable to play vigorous games when she and her brother were young. She confirmed her mother's evidence, that the veteran had smoked up to his death, smoking at least one packet a day. Ms Clarkson stated that she observed her father's deterioration but could not recall him complaining of chest infections, although she was aware of his breathlessness.
In a written report dated 14 February 2001 (exhibit A1), Dr R.B. Collins, Consultant Forensic Pathologist, stated that after reviewing the material and medical records he agreed that the veteran's death was due to glioblastoma multiforme. He said this is a primary malignant tumour of the brain, most common in the age group 45-70, with a very poor prognosis. As the brain tumour was advanced on diagnosis in June 1986, the veteran would inevitably succumb to the condition. However, Dr Collins said his death was hastened due to fresh haemorrhage post-operatively, after which he became comatose and died. Dr Collins reported that it was likely that the veteran developed a terminal chest infection that would have limited his potential for survival after the complications of surgery. This, he said, could be related to his smoking habit. He said that with a tumour of this kind death is rapid for some individuals, but survival time may be extended with surgery, radiotherapy and chemotherapy.
In oral evidence, Dr Collins said that he thought it reasonable to make the inference that the veteran's lung condition contributed to his death. He said the indicators were an increase in the veteran's temperature and signs in the veteran's chest. In saying this, Dr Collins referred to the clinical notes from the veteran's last admission (exhibit R4) where it was recorded [at p.29] "… stable chest: bilateral rhonchi".
Dr Collins said that adopting a lying position post-operatively would have compounded the condition of the lung. As a result of the chronic obstructive airways disease, he said, the veteran's breathing would be poor, thus reducing the supply of oxygen to the brain, which would increase brain pressure. Dr Collins emphasised that on the admission notes the veteran did not have a chest infection. However, he said this did not rule out that he may have developed such an infection in hospital. He said that two possibilities could be offered for the veteran becoming feverish prior to death – that the source of infection was the wound in the brain, or that there was infection somewhere else. He said that the notation of bilateral rhonchi (ie abnormal whistling sounds caused by passage of air through narrowed or obstructed bronchial tubes) was consistent with chest infection.
Dr Collins said that the veteran's death denied him the palliative treatment of chemotherapy and radiation that may have extended his life by some months. Under cross-examination, Dr Collins clarified that the chronic obstructive airways disease did not accelerate the progress of the tumour but it was part of the pattern in the veteran's death.
In a written report dated 22 June 2001 (exhibit R1), Professor J.F.Cade, Director of Intensive Care, The Royal Melbourne Hospital, stated that he had examined all the veteran's documents including hospital and medical files and had read Dr Collins's written report. Professor Cade noted the presence of chronic obstructive airways disease at the time that the veteran was admitted to hospital. He said that he recovered well from the craniotomy but suffered post-operative cerebral haemorrhaging nine days later. Thereafter, no therapy was considered warranted.
Professor Cade stated in his report:
…
Chronic obstructive airways disease (COAD) was clinically diagnosed in this patient and was recorded on his admission to hospital. The mechanism by which it could theoretically contribute to death in a particular patient are via respiratory failure or via predisposition to an acute chest infection. This is an important issue to consider because COAD could in turn be plausibly linked to service via smoking in this patient.
Chronic respiratory failure was excluded in this case because he did not have abnormal blood gases on admission to hospital. Acute respiratory failure was not noted during his hospital admission, i.e. there was no indication of tachypnoea, cyanosis or respiratory difficulty.
Acute chest infection was also not noted during his hospital admission, i.e. there was no indication of newly productive cough, purulent sputum, abnormal chest findings or appropriate changes on chest X-ray. Although he was acutely febrile the day before he died and some form of sepsis was suspected, the source of this was considered by his attending clinicians to be most likely wound (it was weeping) or meninges (he had neck stiffness), though infection at some other site could not be excluded. In any event, neither diagnosis nor treatment of this presumed infection was thought to be relevant as it was apparent that the patient was dying rapidly.
The post-operative complication of raised intracranial pressure due to bleeding was inevitably fatal, as it placed pressure on the vital structures in the brainstem. Professor Cade went on to say that:
… Under these circumstances, no other associated condition however serious could significantly worsen the patient's outlook or hasten his impending demise.
Under cross-examination Professor Cade acknowledged that it was possible for the presence of chronic obstructive airways disease to cause infection. He commented that the notation of bilateral rhonchi (exhibit R4) did not reflect infection; it merely reflected an underlying lung condition. He said that he had carefully looked to see if there was any evidence of lung infection that might in some way have contributed to the veteran's death but had been unable to find this. He said he looked carefully for any connection because it was valid to say that if the veteran had a lung infection it could contribute to his death. He said that it was almost certain that the source of infection was the wound in the brain. Professor Cade indicated that in the absence of any findings about lung infection it was merely speculative that lung infection contributed to death. Professor Cade said that it was untenable to attribute contribution from a lung infection in this case. He said further that in the veteran's case it would be untenable, even if lung infection had been found.
In a written report dated 1 August 2001 (exhibit R3), Professor R. Fox, Director of the Department of Clinical Haematology and Medical Oncology at The Royal Melbourne Hospital, said the cause of the veteran's death was the progression of the underlying brain tumour with associated haemorrhage. He stated that there was no evidence whatsoever that the chronic obstructive airways disease played any role in the cause of death:
… It is overtly obvious from the history that the cause of death was purely due to the brain tumour and its complications.
Professor Fox said in oral evidence that the clinical notes were very clear in the applicant's case. He said that he had never seen a more clear-cut cause of death than that in the veteran's case. He disagreed with Dr Collins's view that lung infection might be inferred, saying that this view was absolute rubbish. He said, however, that all dying patients will have evidence of hypostasis (congestion at the base of the lungs) and bronchial pneumonia as part of the dying process.
In a written report dated 5 July 2001 (exhibit R2) Dr B. Chambers, Neurologist, stated that the cause of death was raised intracranial pressure as a consequence of mass effect from the tumour and the associated haemorrhage with cerebral oedema. Dr Chambers said that the raised intracranial pressure led to compression of the brainstem with loss of regulation of cardiovascular and respiratory centres. He stated that he did not believe that chronic obstructive airways disease had contributed to the veteran's death and that the outcome would have been the same had he had normal lungs. Dr Chambers also stated that "… There may have been sepsis but this would have been a consequence of his neurological demise rather than vice versa". He also ruled out contribution from x-rays, or the administration of aspirin, which had been matters raised at one time by the applicant.
CONSIDERATION OF ISSUES
Section 8 of the Act, insofar as relevantly raised here, provides:
(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:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 120 of the Act provides:
(1)          Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:   This subsection is affected by section 120A.
…
(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.
Note:   This subsection is affected by section 120A.
…
(5)          Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)          Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
The provisions for dealing with the standard of proof in claims made after 1994 are to be found at section 120A. It provides, so far as relevant, as follows:
(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);
that upholds the hypothesis.
Note:   …
The principles to be applied in cases where s120A 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 series of steps:
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 a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.
Mr Hyde submitted that the hypothesis being relied upon was only one of those set out in the applicant's Statement of Facts and Contentions dated 20 September 2001. Namely, that the veteran suffered from widespread chronic obstructive airways disease, which was a condition most likely connected with service-related smoking and was a contributing factor to his demise. The chronic obstructive airways disease led to an infection while in hospital that raised a connection that fell within s8(1)(b) of the Act.
Mr Hyde submitted that Dr Collins's evidence that there may have been a chest infection present provided the link in this case. Mr Hyde also submitted that Dr Collins was not saying that there was clear evidence that an infection was present but that it could be inferred. He submitted that Professor Fox's view to the contrary had not ruled out that chronic obstructive airways disease could predispose to infection. Mr Hyde acknowledged that the weak link in the chain was that there was no evidence of lung infection. However, he relied on Repatriation Commission v Law (1980) 31 ALR 140 for the proposition that there need be only material contribution. He cited the following [at p.151]:
…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause.

While there was no mention of a chest infection in the death certificate, Mr Hyde submitted that the evidence of Dr Collins meant that it could not be ruled out at stage four of the Deledio test, where the Tribunal had to decide beyond reasonable doubt that the death was attributable to war service.
Mr Purcell submitted that the immediate cause of death was the brain tumour and that the evidence clearly ruled out that acute respiratory infection was present and contributed to death. He submitted that Doolette v Repatriation Commission (1990) 21 ALD 489 was authority for the proposition that attributablity is a question of causation in each case, but accepted that the case is authority also for the following proposition [at p.492]:
… if death is hastened because of the accelerated progress of a disease and that acceleration was itself caused by a war-related condition, death would be attributable to service:
Mr Purcell submitted that the Tribunal would have to be satisfied that there was an acceleration of the brain tumour that was occasioned by war-caused disease. Mr Purcell further submitted that greater reliance should be placed on the reports of Professor Cade and Professor Fox. He submitted that the hypothesis will not be a reasonable hypothesis (step 3 of Deledio) if it is too remote or tenuous; and that in this case the suggestion that chronic obstructive airways disease was a cause of death was too remote. However, he said that if the Tribunal were to find that there was a reasonable hypothesis, the reports of Professor Cade and Professor Fox, along with the absence of evidence of lung infection, meant that the Tribunal could be satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that the death was war-caused. He submitted that even had lung infection been present it could not be said to be a contributing circumstance to the veteran's death.
The Tribunal has reached its decision taking into account the written and oral evidence and the submissions made at hearing.
There was no dispute between the parties that the primary tumour of the brain was the main cause of death. All medical evidence agreed on this point and the Tribunal so finds. The applicant contends that the veteran's condition of chronic obstructive airways disease contributed to his death earlier than it would have occurred absent that contribution. This hastening of his demise was postulated as being due to lung infection.
Section 120A requires that the question of whether a death can be related to service must be determined by applying a Statement of Principles. The Tribunal accepts as submitted by the parties that certain principles decided by cases that predate the operation of Statement of Principles, such as Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 continue to have relevance. Those authorities set out that the opinion to be formed under s120(3) of the Act is to be formed prior to consideration of the issues which arise under s120(1), however the opinion to be formed under s120(3), where a Statement of Principles is in place, is now limited by s120A(3). The Tribunal was also referred to Doolette, for the following propositions: that a reasonable hypothesis requires more than a possibility (East v Repatriation Commission (1987) 12 ALD 389) and that acceleration of a death by a war-caused condition will found an entitlement (Re Blyth and Repatriation Commission (1982) 4 ALN N147).
The question of whether a death is related to service is to be decided, if there are Statement of Principles in force for the condition(s), in terms of the factors set out in the Statement of Principles: s120A (3). In this case there are Statements of Principles for both chronic obstructive airways disease (being Instrument N° 73 of 1997 concerning Chronic Bronchitis and Emphysema); and for the brain tumour (being Instrument N° 40 of 1999 for Malignant Neoplasm of the Brain which includes in the definition of the condition the neuroepithelial tumour of which the veteran died). Both parties, in their respective Statements of Facts and Contentions, referred only to an earlier Instrument in regard to the tumour, namely Nº 203 of 1995 for Primary Malignant Neoplasm. However, the Tribunal must apply the Instrument in force at the time of the decision (Repatriation Commission v Gorton (2001) AAR 370). Instrument Nº 40 of 1999 came into operation on 12 May 1999. The applicant's claim was lodged on 5 May 1999. While some changes are made within the definition of malignant neoplasm of the brain in the new statement, and the factors that may be related to service have been reduced, the changes do not affect the facts as raised in this case.
The hypothesis raised here is that there is acceleration by infection arising from chronic obstructive airways disease in the course of death from malignant tumour (Step 1 of Deledio). There is a Statement of Principles in place for Malignant Neoplasm of the Brain, Instrument Nº 40 of 1999 (Step 2 of Deledio).
Step 3 in Deledio requires that an opinion be formed as to whether an hypothesis is reasonable. If the hypothesis is consistent with the template in the relevant Statement of Principles then it will be reasonable. The hypothesis raised must contain at least one of the factors in the Statement of Principles and the factor must be related to service. Factor 5(b) of Instrument N°40 of 1999 states:
…
(b)undergoing a course of therapeutic radiation to the head or neck before the clinical onset of malignant neoplasm of the brain, where the first exposure to therapeutic radiation occurred at least two years before the clinical onset of malignant neoplasm of the brain;

This had been the basis of the claim before the VRB and was not pursued before the Tribunal. On the material available to the Tribunal the hypothesis does not contain one or more of the factors in the Statement of Principles. Therefore it is deemed not to be a reasonable hypothesis, as it is not consistent with the template in the Statement of Principles. For this reason the claim must fail.

The other basis on which the matter was argued was essentially that chronic obstructive airways disease (a disability for which it seems no claim was made in the veteran's lifetime) predisposed to lung infection which could be taken as a contributing factor to death. The respondent did not dispute that the applicant had the condition of chronic obstructive airways disease. The respondent did dispute attribution to service (Statement of Facts and Contentions dated 24 September 2001). The respondent also submitted that Dr Collins's report did no more than raise as a mere possibility that it was a contributory cause of death. Furthermore, while the applicant gave some evidence at the hearing, as did her daughter, about the veteran's breathlessness, this was after his service. There was no evidence led at the hearing about the veteran's smoking on service apart from one document, dated 21 July 1986 at the time of the first claim made by the applicant (T6).
The Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270 addressed the question of what parts of the decision-making process that Statements of Principles are designed to address. The Court agreed with the primary judge in that case that Statements of Principles are not relevant to the question of diagnosis. The Court pointed out that, when the decision-maker is required to determine whether a veteran is suffering from a particular injury or disease, or the characterisation of death in a death case, those issues must be decided to the reasonable satisfaction of the decision-maker [at p.283]:
… The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
In regard to the claim made to have the death of the veteran related to service, the Tribunal must firstly be satisfied about what is referred to in Benjamin as the characterisation of the death. In this case the death certificate states that the cause of death was the primary brain tumour. This on its own is not determinative. However, the evidence of all medical practitioners was that death was due to that condition. Professor Cade, Professor Fox and Dr Chambers ruled out any contribution made to the death of the veteran by chronic obstructive airways disease. They reached their views after examination of the extensive clinical notes concerning the veteran's last admission. Dr Collins consulted those clinical notes also and did not identify lung infection (this being on his evidence a necessary element to the question of acceleration). He did no more than say it could not be ruled out.
The Tribunal is reasonably satisfied that there was no lung infection present that might have contributed to the veteran's death.
DECISION
The Tribunal affirms the decision under review.
I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Olympia Sarrinikolaou
              Clerk
Date of Hearing:  12 November 2001, 26 March 2002
Date of Decision:  30 July 2002
Counsel for the Applicant:           Mr D. Hyde
Solicitor for the Applicant:           Messrs DeMarchi and Associates
Counsel for the Respondent:       Mr G. Purcell
Solicitor for the Respondent:    Advocacy Section, Department of Veterans' Affairs