Kohler and Repatriation Commission
[2004] AATA 142
•13 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 142
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1077
VETERANS' APPEALS DIVISION ) Re ALMA KOHLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date13 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd).....................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether veteran suffered from condition’s claimed – cerebrovascular accident – asthma – hypertension – panic disorder – PTSD – obesity – cushings syndrome – whether veteran’s conditions caused by war service – whether reasonable hypothesis raised.
Veterans’ Entitlements Act 1986 ss 8, 11, 13, 14, 119, 120, 120A, 196B(2)(d), (e)
Repatriation Commission v Bey (1997) 149 ALR 721
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Cooke (1998) 160 ALR17
Re Robertson and Repatriation Commission (AAT 1266, 2 march 1998)REASONS FOR DECISION
Member IR Way 1. This is an application by Alma Kohler for review of a decision of the Repatriation Commission dated 6 May 1998, affirmed by the Veterans’ Review Board on 10 September 1999, which determined that the death of the applicant’s husband, Harley Desmond Kohler, (the veteran) was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§Exhibit A1 - Statement Alma Kohler 12 June 2001
§Exhibit A2 - Report of Dr Love 7 March 2001
§Exhibit A3 - Report of Dr Carter
§Exhibit A4 - Report of Dr RW Ayres 10 November 1993
§Exhibit A5 – Clinical notes – Dr B Dixon 1 November 1999
§Exhibit A6 – DVA Documents – H D Kohler – Medical Diagnosis 10 February 1998
§Exhibit A7 – DVA Document – Claimant Report – Develop of Asthma – Invest Claim – Dixon 25 February 1998
§Exhibit A8 – Clinical Notes – HD Kohler – Toowoomba Base Hospital
§Exhibit A9 – Clinical Notes – HD Kohler – St Andrew’s Toowoomba Hospital
§Exhibit A10 – Clinical Notes – HD Kohler – Goondiwindi Hospital
§Exhibit R1 – Clinical Notes – Dr Huskisson 11 November 1999
§Exhibit R2 – Dr Grant opinion 8 May 2001
§Exhibit R3 – Dr Grant opinion 15 May 2001
§Exhibit R5 – Report of Dr Kingswell 3 July 2002
3. The applicant was represented by Mr L Wilson, and Mr M Smith represented the Respondent.
4. Evidence by telephone was given by the applicant, Dr B Dixon, Dr J Carter, Dr P Grant, Dr W Kingswell, and Dr J Wright.
5. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act..
6. The veteran was born on 3 November 1922 and served in the Royal Australian Airforce from 23 May 1942 to 10 December 1945, including service overseas. As such the whole of his service is operational service. The applicant is the widow of the veteran.
7. The veteran died on 7 March 1998 aged 75 years. The cause of the victim’s death is recorded in the veteran’s death certificate as (a) Cerebrovascular Accident (24 hours) and (b) Hypertension (ten years).
8. At the time of his death, the veteran had no service related disabilities. His non-service related disabilities are recorded as Asthma, Cerebral Ischaemia, Ischaemic Heart Disease, and death.
Legislative Framework
9. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 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:
(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;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
10. Section 120 describes the relevant standard of proof.
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying 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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(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.”
11. Other relevant provisions of the Act in respect of a claim are as follows:
“s119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
….
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
12. Section 120A provides that the reasonableness of hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP).
“(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.
(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.
(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.
(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.”
13. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
14. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
15. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless a relevant SoP upholds the hypothesis.
16. Section 196B(2)(d) and (e) relevantly provides:
“(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
…..
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
17. The applicant has raised the hypothesis that the veterans death from Cerebrovascular Accident can be related to the veterans service because of his hypertension, his suffering from panic disorder and his inability to undertake more than a mildly strenuous level of physical activity for at lease five years before the clinical onset of Cerebrovascular Accident.
18. The applicant contends that the veteran’s hypertension was caused by his obesity; suffering from stress; and suffering Cushings Syndrome because of Corticosteroid medication taken because of his asthma.
19. Central to the applicant’s complex hypothesis is the contention that the applicant suffered from war-caused asthma, and that the applicant suffered from panic disorder arising from him suffering severe stressors during his service as a gunner with the RAAF during World War II.
20. There is no dispute between the parties and the Tribunal accepts that the relevant SoPs in this matter are as follows:
§Cerebrovascular Accident – Instrument No 52 of 1999 (as amended by Instrument No 30 of 2002 and 57 of 2003)
§Asthma – Instrument No 85 of 2001
§Hypertension – Instrument No 35 of 2003
§Panic Disorder – Instrument Number 9 of 1999 (as amended by Instrument No. 58 of 1999)
§PTSD – Instrument No. 3 of 1999 (as amended by Instrument No. 54 of 1999)
§Ischaemic Heart Disease – Instrument No. 53 of 2003
§Cushings Syndrome – Instrument No. 249 of 1995
21. The Tribunal accepts that the RMA definition of “being obese”, as set out in its statement dated 16 August 1996, is also relevant.
22. The relevant parts of the above statements are referred to later in these reasons for decision.
Applicant’s Evidence
23. The applicant provided a written statement dated the 12 June 2001 (Exhibit A1) as follows:
“I married my husband in 1974 and had known him, for approximately 5 years before this.
For the whole time I knew my husband, he suffered considerably from his asthma. After we were married, there were a number of times where I had to rush him to a hospital due to asthma attacks. I recall that his friends had to rush him off to hospital a number of times before we were married.
My husband was on medication for his asthma the whole time that I knew him. I know that he was on Ventolin 2 puffs every 4 hours and Becloforte 4 puffs 3 times a day for a long period of time.
I recall that my husband told me that he never had problems with his breathing until after his service in the Airforce during the war.
I remember my husband telling me that after the war, he had to go and have specialist tests in Brisbane for his asthma.
I recall one day when we thought that my husband was having an asthma attack it turned out that he was actually having a heart attack. This was the first time he was diagnosed with heart disease.
After my husband’s heart attack he was placed on medication to thin his blood. He was told to take on disprin each morning to thin his blood to prevent further heart attacks.
He kept taking this one disprin each morning up until the time when he had the stroke.
My husband was a non-smoker, but he did drink alcohol. My husband would normally have one or two drinks of a night time. He would usually also have a few drinks if we went to a club. However, we could not stay at a club very long because my husband’s asthma would typically play-up.
After my husband’s heart attack, he went right off the drink (over 12 months) for a while, but later went back on it.
My husband was not a lazy person and tried to exercise as much as he could. We would go for a walk on occasions and my husband had an exercise bike which he would ride occasionally.
I recall that my husband got stressed very easily.
When my husband was getting stressed or anxious about something, this would often bring on an asthma attack. When my husband was stressed in this way, he would typically shake and sweat and hold on to a door frame to keep himself from falling as he could not get his breath at this time either.
These attacks would come on quite suddenly.
While my husband had asthma attacks at times when he wasn’t stressed, these type of attacks were more likely to happen if he was stressed.
I recall that when my husband and I were first married he was going to lodge meetings quite frequently. On the day before the lodge meeting, he would often be stressed and anxious to such a state that he would normally have one of these attacks where he would shake and sweat and be unable to breath.
My husband would get very upset if he was asked about his war experiences. While he would not talk about his experiences, it was obvious that something from his war service was extremely distressing to him.
I recall that each ANZAC Day my husband would sit and watch the march on television and would just cry like a baby.”
24. In her evidence by telephone the applicant said that the veteran did not tell her anything about his service in the RAAF because it upset him too much and “only told me the nice things that happened to him”.. She said that while she had known the veteran’s family all her life she only got to know the veteran and become friendly with him in about 1969. She said that the veteran had three sisters, two still living, however relations with them were strained and she had not approached them in respect of her application before the Tribunal. The applicant said she did not know when the veteran had his first asthma attack, or if he had asthma attacks during the war, or when his friends had to rush him to hospital because of asthma attacks. She said that during the time she knew him (that is from 1969), he had asthma all the time and that while he may go a week or more without an asthma attack, generally he suffered about two attacks a week. She said that she knew of nothing that would bring on his asthma attacks. She said a lot of the attacks happened in bed and described the symptoms of his asthma attacks as not being able to breathe, shaking, sweating and having to hold onto something as though he was going to fall. She said her husband told her not to touch him during the attacks. She said her husband did not have nightmares. She told the Tribunal that her husband had a heart attack in 1992. She said that her husband was not really an anxious person however his asthma attacks scared him and he always had his puffer with him. She reinforced the comment in her statement about the veteran becoming stressed and having difficulty in public speaking. She described her marriage as stable and that she and her husband did not fight. She said her husband loved the garden and fishing and that post war he was a keen golfer who played regularly on the weekends.
Medical Evidence
25. Dr B Dixon told the Tribunal that he began treating the veteran, as his GP, late 1988/early 1989. He confirmed the medication that the veteran was taking at the time of his death, including Solprin (a type of aspirin) since his heart attack in 1992 (Exhibit A5), at which time the veteran had pre-existing hypertension which he thought was due to the veteran being an anxious individual and being overweight (Exhibit A6). Dr Dixon was not able to say when the veteran became hypertensive. In respect of asthma, Dr Dixon said that the veteran had asthma when he first started treating him and he told the Tribunal that his recording of the onset of the veterans asthma in 1944 and development of asthma during WWII (Exhibit A6 and Exhibit A7), was what the veteran had told him. He said he had discussed this with the veteran on numerous occasions. Dr Dixon said that he had referred the veteran to Dr M Heiner, consultant thoracic physician, in respect of his asthma and that Dr Heiner may have dealt with the question of onset of asthma. The Tribunal notes that Dr Heiner, in a report dated 16 December 1996, simply states the veteran “had asthma which dates back a number of years” (Exhibit A4). With respect to the veteran’s obesity, Dr Dixon accepted that the veteran’s height at 5 foot 10 inches (1.78m) was about right and that for a veteran to have a body mass index of 30 or more, his weight would need to be 95kg or more. The Tribunal notes that there is no evidence of the veteran ever being 95kg or more in weight, his weight being recorded by Dr Dixon between 87 and 91kg (Exhibit R4). Dr J Carter, consultant psychiatrist, interviewed the applicant by telephone and had access to departmental files and various medical reports. She reported on 27 March 2002 (Exhibit A3) that in her opinion the veteran suffered from panic attacks which were recurrent and unexpected and that he fulfilled the criteria for suffering from panic disorder. She also opined that it is more than likely that he also suffered from post traumatic stress disorder, although she could not be specific about the stressors which caused this disorder.
26. In cross-examination, Dr Carter was asked to explain her report of the veteran experiencing a severer stressor within two years of the clinical onset of Panic Disorder. She said she had arrived at this view from answers she received from questions she asked the applicant. When asked if she had eliminated asthma as the cause of the symptoms of panic attacks, she said that while she believed the veteran suffered from frequent asthma attacks, such attacks did not happen all the time and were characterised as episodic, occurring from time to time. She said that in questioning the applicant she did not get the impression that asthma was in the foreground with respect to the veteran’s incapacity re life and the information given to her did not lead her up such a path. She said she did not believe all of the symptoms described to her could be explained by asthma. It was Dr Carter’s evidence that anyone with asthma would know the difference between panic attacks and asthma attacks, however she agreed that while the veteran would know this or that a doctor could tell the difference, the applicant would not be so placed. When it was put to her that the applicant described the veteran’s sweating, trembling, shaking and suffering from chills and hot flushes only occurring during asthma attacks, she said that this was not the history given to her. Dr Carter did not accept that much of what she said on page 5 of her report was inconsistent with the veteran’s real circumstances.
27. Dr Kingswell, consultant psychiatrist, also spoke to the applicant by telephone and reviewed departmental files and medical reports and provided a written report dated 3 July 2002 (Exhibit R4). The Tribunal firstly notes that Dr Kingswell went through Dr Carter’s report with the applicant and records the applicant as specifically disagreeing with Dr Carter’s recording of her saying that her husband feared losing control, feared he might be going crazy and thinking he might die. The applicant when taken to Dr Carter’s report of the veteran having “recurrent and intrusive recollections of the events which included images and thoughts” said “I don’t know” and the applicant when shown the sentence that the veteran suffered from chills and hot flushes said “that was when he had asthma attacks”. In cross examination the applicant agreed that what she had told Dr Kingswell, as set out above, was correct. The Tribunal further notes that Dr Kingswell records the applicant telling him that while her husband was nervous, particularly in respect of public speaking, at other times he was quite involved in the community, attended senior citizen monthly meetings and went on their trips without being anxious or nervous; and that she never noticed her husband to be irritable. When these matters were put to Dr Carter, she expressed surprise and said that what the applicant told Dr Kingswell is not the history given to her.
28. Dr Kingswell, in his evidence by telephone, highlighted the difficulties faced by psychiatrists in making posthumous diagnoses. Having said that, Dr Kingswell after considering the applicant’s evidence and the reports available to him, opined that the veteran did not suffer from panic disorder or PTSD. In arriving at this opinion Dr Kingswell stated:
“There is no evidence to hand to suggest that Mr Kohler exhibited any symptoms of mental disorder. He was anxious when public speaking and reportedly suffered from severe asthma. He had lost a number of friends in World War II and in the post war years. This apparently caused him some grief.
The sorts of symptoms Mr Kohler experienced such as shortness of breath, tremor, sweating and palpitations did not all occur at the same time as would be typical of a panic attack. Further, Mrs Kohler has not given a history of any of these episodes occurring out of the blue. His anxiety was clearly precipitated by important events such as public speaking or other public scrutiny such as his surprise party.
The relevance of Mr Kohler’s shortness of breath and sweating in the setting of severe asthma requiring inpatient care is uncertain and I do not think there is any basis to assume that it arises from panic disorder.
…
Panic disorder is a common condition effecting between 1 and 2% of the population. It is readily identifiable from the constellation of symptoms described in the Statement of Principles. It is a diagnosis that can be confidently made on the basis of an adequate history and the exclusion of a medical condition or drugs and alcohol that might more properly account for the symptoms. Making a posthumous diagnosis becomes problematic in that it is impossible to assess other conditions that might have contributed to the symptoms. However excluding a diagnosis I believe then can be done quite reliably. There is simply no evidence to hand that Mr Kohler ever experienced the constellation of symptoms described in the Statement of Principles.
More than 20 years lapsed between Mr Kohler’s experience with the RAAF and Mrs Kohler’s courtship with him. If he experienced a severe stressor there is nothing to hand that would suggest that he developed panic disorder within two years of that experience.”
29. In re-examination, Dr Kingswell, when asked whether the applicant was confused when questioned, said that he could not remember this as a feature of his interaction with her. He said he found her to be not at all confused and she appeared to be confident and relaxed. Further in re-examination, Dr Kingswell reinforced his view that the veteran’s various symptoms as described by the applicant occurred at different times and this was atypical of what would happen in a panic attack. When it was put to him that it was the applicant’s evidence at the hearing that the symptoms did occur at the same time, (when the veteran was suffering an asthma attack), he said this was markedly at odds with what the applicant had told him. With respect to the question of the significance of asthma Dr Kingswell said this was not within his discipline.
30. Dr Kingswell also highlighted the fact that at no time during the long period that Dr Dixon knew the veteran did Dr Dixon’s contemporaneous records include any reference to anxiety disorder.
31. Dr Love, physician, provided a written report dated 7 March 2001 (Exhibit A2) and gave evidence by telephone. In his written report Dr Love highlighted the difficulty in assessing the veterans health in the absence of records prior to 1989. Dr Love stated:-
“My reconstruction of Mr Kohler’s medical history is that he became asthmatic during his war service period and was managed without hospital admission for several decades. The asthma contributed to and was aggravated by a nervous condition which, we are told, Mr Kohler also developed as a result of his war service. The asthma prevented Mr Kohler from taking vigorous or moderate physical activity for much of his life and in consequence he developed obesity. When his asthma finally worsened in 1989 he was already obese and hypertensive and the long-term corticosteroid therapy which was now necessary for his asthma worsened those conditions. His obesity and lack of exercise would have contributed to his rising cholesterol and the combination of these factors would have led to his terminal cerebrovascular accident.”
32. With respect to the veteran’s cholesterol levels Dr Love noted in his written report that the veteran’s cholesterol level (LDL) was above the desired limit at the time of his heart attack in 1992 and that at the time of his initial admission to hospital with cerebral infarction, his cholesterol level was high, at 8.4/8.5. Dr Love also noted that in the late 80’s/early 90’s, the veteran was on corticosteroid therapy both oral and inhaled (which was continued for the rest of his life), for control of serious asthma, and that this therapy had unwanted effects including elevation of blood pressure and weight gain.
33. In his oral evidence Dr Love when taken to the veteran’s recorded weight in Dr Dixon’s notes and when told the applicant’s height was 1.78m, agreed that the veteran was not technically obese and that the veteran’s weight had in fact gone down a little while the veteran was taking Prednisone.
34. Dr Love told the Tribunal that it was generally correct that oral steroids are more dangerous than inhaled steroids, depending of the dosages.
35. When taken to E.MIMS indicating that Prednisone can elevate triglycerides and that the same can not be said with respect to cholesterol or LDL, Dr Love was not able to comment, other than to say E.MIMS does no exclude the possibility of corticosteroid therapy having an adverse effect on cholesterol.
36. Dr J Howell, saw the applicant in November 1992 following his heart attack and reported:
“As requested I did a stress E.C.G. on this gentleman, he remains asymptomatic on his present treatment, has had a documented myocardial infarct, an inferior infarct spreading laterally.
For convenience I admitted him to the General Hospital and did a stress E.C.G. on him on the 4th November, his resting cardiogram shows T-wave inversion in 111, biphasic t-wave in VF, T-wave inversion in V5 and V6.
He did his exercise extremely well and on a modified Bruce protocol could not achieve Stage IV because the treadmill was going too fast and he just could not cope with it. However, an interesting feature emerged, his pulse rate did not meet the expected, but he had no chest pain but although was extremely dyspnoeic.
The E.C.G. after exercise shows no definitive changes, the pulse rate by the time we stopped the exercise was 108 per min. predicted as 138.
Conclusion: I think that this gentleman has done extremely well, may even have developed collateral circulation because of his regular exercise program, I suggest he continues on his present medication and will review him, if you are agreeable, towards the end of November.
Certainly no angiograms are needed on what I can see at present on his stress E.C.G. although I do recognise the controversy between stress E.C.G.’s and coronary angiograms.”
37. Dr R Ayres, cardiologist saw the applicant in November 1993 and reported (Exhibit A4) that the veteran had an inferior myocardial infarct in early February 1992 and that apart from this and asthma he had no other significant past medical history. Dr Ayres also noted that the veteran’s LDL cholesterol level was clearly above the desired limit and as such Dr Ayres suggested to the veteran’s GP that Lipex or Zocor medication would be appropriate.
38. Dr P Grant, Department Senior Medical Officer, provided two written opinions in May 2001 (Exhibit R2 and Exhibit R3) and gave evidence by telephone.
39. In his written reports, Dr Grant, having reviewed the departmental documents and various other reports and clinical notes, expressed the view;
§That the clinical onset of the veteran’s asthma was probably in the mid 60’s
§That the clinical onset of the veteran’s hypertension was probably in 1988
§That the stress test in 1992 is inconsistent with the suggestion that the veteran was moderately to severely disabled in 1992 and that the veteran’s ability to exercise to Stage IV was consistent with a high level of activity
§That the veteran started taking aspirin in 1992
§That the veteran did not reach the benchmark for obesity
§That steroids had not been prescribed to the veteran before 1989 and use of oral steroids was intermittent thereafter, the veteran’s asthma had been stabilised with inhaled steroids
§Hypertension was present in 1989 before starting Prednisone and blood pressure readings subsequent to this are not consistent with a view that hypertension was aggravated by taking Prednisone.
40. In his oral evidence Dr Grant expressed surprise that the veteran would be on flight crew in World War II if he suffered from asthma at that time. Expressing the opinion that the veteran’s onset of asthma was in the mid 60’s, Dr Grant, in cross examination, stated that in arriving at this opinion he had not been aware that the veteran had advised his LMO that he had asthma from 1944 onwards. When it was put to Dr Grant that it was possible that the veteran developed asthma in 1944 and it slowly became worse then quite severe from the late 80’s Dr Grant agreed that this was quite a possibility.
Submissions
41. Both parties made detailed final submissions in writing.
42. In summary it was submitted for the applicant that the death of the veteran was war-caused on the basis of him meeting factors 5(a), 5(c) and 5(d) of the SoP for cerebrovascular accident. These factors are:
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service are:
(a) the presence of hypertension before the clinical onset of cerebrovascular accident; or
…..
(c) suffering from panic disorder before the clinical onset of cerebrovascular accident; or
(d)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of cerebrovascular accident;”
43. With respect to hypertension and inability to undertake physical activity, the applicant relies on the veteran suffering from war-caused asthma, which in turn contributed to his hypertension because medication for this condition caused elevated blood pressure and weight gain with consequent inability to undertake physical activity.
44. With respect to panic disorder, the applicant submitted that the veteran suffered from panic attacks and panic disorder because of the severe stressors he experienced in World War II. It was submitted that there was evidence that the symptomatology of the veteran’s panic attacks, while similar to symptoms of asthma attack, were not identical. It was submitted that the applicant’s evidence clearly supported the contention that the veteran suffered from significant panic attacks that severely affected the veteran’s health.
45. The respondent submitted that evidence before the Tribunal about the applicant’s medical condition during World War II was wholly second hand and merely leaves open the possibility that the onset of the veteran’s asthma was during his operational service. The Tribunal referred to Repatriation Commission v Bey (1997) 149 ALR 721 in its consideration of this matter. It was further submitted that even if the onset of asthma was during service there is no evidence whatsoever to show there was a casual connection with service within the provisions of the relevant SoP.
46. With respect to obesity, it was the respondent’s submission that obesity is a risk factor for hypertension and IHD but not a risk factor for cerebrovascular accident.
47. In any event it was submitted that at no stage prior to his heart attack, was the veteran’s weight any way near the obesity threshold.
48. With respect to Cushings Syndrome, the respondent submitted that there was no evidence provided that the veteran had ever suffered from this condition.
49. In so far as panic disorder is relevant, the respondent submitted that the weight of the evidence before the Tribunal showed that the symptoms suffered by the veteran were related to his asthma attacks and as such the veteran did not meet the diagnostic criteria for panic attacks or panic disorder. In any event, it was submitted that the applicant was unable to provide any evidence of the veteran’s situation before 1969 and there is absolutely no evidence that panic disorder was present within two years of a service war caused stressor.
50. With respect to consideration of the diagnoses of the veteran’s medical condition, the respondent referred the Tribunal to Lees v Repatriation Commission [2002] FCAFC 398 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690.
51. In summary the respondent submitted that the veteran’s asthma was not war-caused nor can the veteran’s death ultimately be connected to asthma and the veteran did not suffer from any war-caused psychiatric disorder.
Consideration
52. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 s196B(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 s196B(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 s120(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.”
53. The Full Federal Court determined in McKenna v Repatriation Commission (1999) 86 FCR 144, that a hypothesis connecting the veteran’s death with the circumstances of his war service can contain a linking sub-hypothesis, the whole seen as a complex hypothesis with each element being no stronger than each of its elements or parts. Furthermore each element must be upheld by a relevant SoP for the hypothesis as a whole to be a reasonable hypothesis.
54. The Tribunal is of the view that in this case there are linking sub-hypotheses, and that these sub-hypotheses must be considered within the context of the steps as set out in Deledio (supra). Furthermore, the Tribunal is of the view that any such consideration requires the Tribunal in the first instance to be reasonably satisfied that the veteran suffered from the claimed medical condition. Such an approach is consistent with what the Full Court said in Repatriation Commission v Cooke (1998) 160 ALR17.
55. At the outset, the Tribunal needs to determine, to its reasonable satisfaction, the characterisation of the cause of the veteran’s death and the medical conditions which it is claimed he suffered.
56. There is no dispute between the parties that the cause of the veteran’s death in 1998 was Cerebrovascular Accident (24 hours) and hypertension (10 years) and the Tribunal so finds.
57. It is also common ground between the parties that the veteran suffered from asthma and in view of this and on the medical evidence before it, the Tribunal so finds.
58. With respect to the questions to whether the veteran suffered from obesity, the Tribunal accepts the evidence before it that the veteran was 1.78m tall and that at no time is there a record of the veteran weighing 95kg or more, the weight required for him to be classified as obese in accordance with the obesity statement promulgated by the RMA. The Tribunal is satisfied that at all times, the veteran’s weight was such that he was not at any time obese.
59. In respect to Cushings Syndrome, there is no evidence that the veteran actually suffered from this syndrome and the Tribunal so finds. Furthermore, even if the veteran did suffer from Cushings Syndrome, there is no evidence before the Tribunal which points to the veteran meeting any of the required factors set out in Instrument No. 249 of 1995 (Cushings Syndrome), one of which must exist for there to be a reasonable hypothesis connecting such a condition with his service.
60. Of relevance to further consideration of the veteran’s medical condition is the question of the time of clinical onset of the veteran’s asthma.
61. The Tribunal is mindful that in Lees (supra) the Court referred to the Tribunal’s acceptance of the approach taken in Re Robertson and Repatriation Commission (AAT 1266, 2 march 1998), namely that:
“… there is a clinical onset of a disease, either when a person becomes aware of some features or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
The Court went on to express the view that the Tribunal did not err in its approach to the meaning of the expression “clinical onset”.
62. The respondent has submitted that neither the applicant, nor any doctor, has any direct knowledge of the veteran’s condition of asthma prior to 1969. Various opinions have been offered, ranging from World War II to the mid 60’s and Dr Grant has agreed that it is possible that the veteran first developed symptoms of asthma during World War II.
63. As such the Tribunal accepts that there is a hypothesis put forward which connects the veteran’s asthma with his war-service and that this hypothesis must be considered within the terms of the relevant SoP, namely Instrument No. 85 (2001).
64. The factors that must be related to service and at least one of which must exist are set out in paragraph 5 of Instrument No. 85 (2001) and as defined in paragraph 8. Even if the Tribunal accepts that the clinical onset of the veteran’s asthma was during World War II, there is no evidence whatsoever that any of the required factors in the relevant SoP exist and as such the Tribunal is of the view that the hypothesis raised by the applicant does not fit the template of the SoP and therefore is not a reasonable hypothesis. The Tribunal is therefore satisfied that the veteran’s asthma is not war-caused and that any medical conditions that the veteran suffered as a result of his asthma are not service related.
65. Turning then to hypertension, the Tribunal, on the material before it accepts the respondent’s submission that the clinical onset of the veteran’s hypertension was in the late 1980’s.
66. The applicant’s hypothesis is that the veteran meets factors 5(a) and 5(i) of Instrument No. 35 of 2003. In view of the Tribunal’s findings above that the veteran was not at any time obese and did not suffer from Cushings Syndrome the hypothesis put forward by the applicant does not fit the template of the relevant SoP and the Tribunal is therefore satisfied that the hypothesis is not a reasonable hypothesis.
67. With respect to the veteran’s psychiatric condition, as is often the case in such matters, the medical opinions about whether the veteran suffered from panic disorder (or PTSD) are conflicting. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the veteran did not suffer from Panic Disorder within the meaning of that disorder as set out in Instrument No. 9 of 1997 (as derived from DSM IV). In arriving at this conclusion, the Tribunal has accepted that the veteran did suffer from symptoms akin to those related to a panic attack, however, on the evidence before the Tribunal, the Tribunal is satisfied that the symptoms suffered by the veteran were related to his general medical condition of asthma.
68. The Tribunal is mindful the applicant has not pressed the question the veteran suffering from PTSD, however, for the sake of completeness, the Tribunal has also considered whether the veteran suffered from PTSD. The Tribunal accepts the respondent’s concession that the veteran was exposed to an event that involved actual threatened death or serious injury (as required by DSM IV and as set out in Instrument No. 3 of 1999), however the evidence before the Tribunal does not support a contention that all of the other diagnostic criteria have been met. The Tribunal is therefore satisfied that the veteran did not suffer from PTSD. In view of this finding and the finding that the veteran did not suffer from Panic Disorder, the Tribunal is satisfied that the veteran did not suffer from a clinically significant anxiety condition for six months prior to the onset of hypertension and that therefore factor 5(n) of Instrument No. 35 of 2003 (hypertension) is not met.
69. Finally, there is the question of whether the veteran had an inability to undertake more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of Cerebrovascular Accident. While the Tribunal accepts that the veteran was overweight, he was not obese and any limitation imposed on his level of activity because of his asthma can not be related to his war service. Furthermore the Tribunal accepts Dr Grant’s opinion that the stress test taken by the veteran in1992 was consistent with a high level of activity. The Tribunal is therefore satisfied that factor 5(d) of Instruction No. 52 of 1989 does not exist.
70. In summary, the Tribunal is of the view that the veteran’s hypertension and asthma are not war-caused, that the veteran did not suffer from Panic Disorder, PTSD, Cushings Syndrome or obesity and that the veteran did not have an inability to undertaken more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of Cerebrovascular Accident because of service related factors or conditions. It follows that the Tribunal is satisfied that there is not a reasonable hypothesis connecting the veteran’s death with his war service.
71. The Tribunal affirms the decision and the review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Member IR Way
Signed: Kirsten Donnelly
AssociateDate/s of Hearing 13 November 2003
Date of Decision 13 February 2004Solicitor for the Applicant Mr L Wilson, Doyle Wilson Solicitors
For the Respondent Mr M Smith, Departmental Advocate
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