KRATZKE and REPATRIATION COMMISSION
[2010] AATA 333
•7 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2964
VETERANS' APPEALS DIVISION ) Re MYRTLE KRATZKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S Karas, AO, Senior Member
Associate Professor J B Morley RFD, MemberDate7 May 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Pensions and benefits – Widow’s pension – Whether the veteran’s death was war-caused – No sufficient grounds to establish that the veteran’s injury or disease was war-caused – Decision affirmed.
Veterans' Entitlements Act 1986 (Cth) ss 8, 120, 120A, 196B,
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fitzgerald v Penn [1954] HCA 74
Fogarty and Repatriation Commission [2003] FCAFC 136
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission and Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
7 May 2010 Mr S Karas, AO, Senior Member
Associate Professor J B Morley RFD, MemberBACKGROUND
1. Myrtle Jessie Kratzke is the widow of the late veteran, Vivian Kratzke. Mr Kratzke was born on 5 November 1918, and rendered 'operational service', as that term is used in the Veterans' Entitlements Act1986 (Cth), in the Australian Army from January 1942 to October 1945, being posted for some of that time in Rockhampton and New Guinea.
2. The late veteran's service documents show no evidence of him suffering any heart condition, nervous condition, or drinking problem during his eligible service. Pending his discharge he was medically examined, and found to be suffering from recurring dermatitis; however he was free of any other clinical condition, including any form of heart disease. It was recorded that he had suffered an injury to his right knee in July 1942. His blood pressure was recorded at 122/90.
3. The material before us showed that the veteran had the "accepted" service related disabilities of bilateral sensorineural hearing loss, osteoarthrosis of the right knee, osteoarthrosis of the left knee, and lumbar spondylosis.
4. He died in Greenslopes Hospital on 25 March 2008. His Death Certificate records that the veteran's cause of death was:
1(a) Myocardial infarction (b) Ischaemic heart disease
The durations of these conditions were recorded as:
(a) 24 hours (b) 10 years +
5. On 3 June 2008, Mrs Kratzke submitted an application to the Repatriation Commission for the widow's pension on the basis that the veteran's death should be recognised as war-caused. In her Statement of Facts, Issues and Contentions of 28 January 2010, her solicitor has contended two alternative hypotheses:
· The veteran experienced stressful war service, which led him to develop an alcohol consuming habit, which in turn led to his developing hypertension, which caused him to develop ischaemic heart disease leading to his death; or
· Because of his war-caused osteoarthrosis of his knees, he was unable to undertake more than mildly strenuous physical activity for at least five years, and became obese, before the clinical worsening of his ischaemic heart disease leading to his death.
6. Mrs Kratzke's claim was rejected by a Delegate of the Commission on 5 June 2008. On review, it was rejected by the Veterans' Review Board on 19 February 2009. Mrs Kratzke now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
ISSUES
7. The issue in this case is whether the veteran's death was war-caused within the meaning of s 8 of the Veterans' Entitlements Act 1986 (Cth) (the Act).
RELEVANT STATUTES AND RELATED INSTRUMENTS
8. Section 8 of the Act reads, in part:
8. War-caused death
(1)Subject to this section and section 9A, 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;
...
120. 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.
9. Section 196B of the Act requires that, because Mrs Kratzke has lodged her claim after 1 June 1994, it must be evaluated according to any relevant Statement of Principles (SoPs) issued by the Repatriation Medical Authority (the Authority).
10. We also must take into consideration the course of reasoning enunciated by the Full Federal Court which ss 120 and 120A of the Act require a decision-maker to take, in relation to a claim lodged under the Act for a pension arising out of operational service rendered by a veteran. The Court set this out in Repatriation Commission v Deledio (1998) 83 FCR 82, to require the satisfying of four 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 doing so, no question of onus of proof or the application of any presumption will be involved.
11. Furthermore, we are required to decide whether the veteran's "kind of death" was war-caused, this being described by the High Court in Fitzgerald v Penn [1954] HCA 74 as the particular illness or disease which can fairly and properly be considered the cause of death.
STANDARD OF PROOF
12. There is no dispute that the veteran had operational service, and the standard of proof required to link his war service to his death is that of a reasonable hypothesis (see s 120(3)). Once a reasonable hypothesis is established, the relevant connection of the death to war service will be proved unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)).
13. In considering Mrs Kratzke's two alternative hypotheses, to assess whether the standard of proof is reached, we have referred to the following SoPs:
- for hypertension, Instrument Number 35 of 2003, or as amended by Number 3 of 2004 and Number 11 of 2008;
- for ischaemic heart disease, Instrument Number 89 of 2007, or as amended by Number 43 of 2009; and
- for morbid obesity, Instrument Number 31 of 2003.
14. For Mrs Kratzke's first alternative hypothesis, Number 35 of 2003 for hypertension states:
Kind of injury, disease or death
2. (a) ...
(b)For the purposes of this Statement of Principles, "hypertension" means permanently elevated blood pressure, evidenced by:
(i)...
(ii) the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
15. In addition, for her first alternative hypothesis, it was contended at the hearing that Factor 5(b) was the relevant criterion to be met, which prescribes as follows:
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
(a) ...
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or...
16. Consequent on this, Instrument Number 89 of 2007 for ischaemic heart disease, states:
Kind of injury, disease or death
3. (a) ...
(b)For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
17. Furthermore, for Mrs Kratzke's first alternative hypotheses, at the hearing it was contended that Factor 6(a) was the relevant criterion to consider, prescribing as follows:
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service is:
(a)having hypertension before the clinical onset of ischaemic heart disease; or ...
18. The amendment to this SoP, Instrument Number 43 of 2009, does not modify or change this Factor 6(a).
19. For Mrs Kratzke's second alternative hypothesis, her solicitor made out two contentions. Each relied on the consequence of causing ischaemic heart disease.
20. First, at the hearing it was contended that Factors 6(y) and (z) were the relevant criteria to consider, prescribing as follows:
Factors
6. ...
(y)being obese for at least five years before the clinical worsening of ischaemic heart disease; or
(z)for males, having a waist to hip circumference ratio exceeding 1.0 for at least five years, before the clinical worsening of ischaemic heart disease; or ...
21. Second, subject to the relevance of Factors 6(y) and (z) of SoP 89 of 2007 being established, with regard to "obesity" it was to be contended that Instrument Number 31 of 2003 for morbid obesity applied. This states:
Kind of injury, disease or death
2. (a) ...
(b)For the purposes of this Statement of Principles, "morbid obesity" means an excessive accumulation of fat in the body resulting in:
(i) a BMI of at least 40; or
(ii) a BMI of at least 35 together with a requirement for:
(a)ongoing, medically prescribed drug therapy for weight reduction; or
(b)surgical intervention for weight reduction other than cosmetic surgery."
22. It was further contended that Factor 5(a) was relevant, which states:
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting morbid obesity or death from morbid obesity with the circumstances of a person's relative service are:
(a) having a caloric intake that:
(i) is excessive for energy needs; and
(ii) cannot be compensated by physical activity;
for the year immediately before the clinical onset of morbid obesity; or ...
23. In respect of other aspects of the claim, particularly in relation to diagnosis, the "reasonable satisfaction", or "balance of probabilities", standard is the appropriate standard (s 120(4)); Repatriation Commission and Gosewinckel (1999) 59 ALD 690 at 691. This is generally accepted as equating to the civil standard of proof: Benjamin v Repatriation Commission (2001) 70 ALD 622 and Fogarty and Repatriation Commission [2003] FCAFC 136.
EVIDENCE
24. The following documentary exhibits were admitted into evidence:
- Exhibit A - the T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975;
- Exhibit B - the amended respondent's Statement of Facts and Contentions dated 19 April 2010, with an attachment "Cardiorespiratory Impairment: Activity Levels";
- Exhibit C - the applicant's Statement of Facts, Issues and Contentions dated 28 January 2010;
- Exhibit D - an undated statement from the applicant received on 28 January 2010; and
- Exhibit E - a statement from the applicant dated 14 September 2009.
25. The only witness who provided oral evidence was the applicant, Myrtle Jessie Kratzke.
Mrs Myrtle Kratzke
26. In her evidence before us, Mrs Kratzke said that she and the veteran had met at a dance in 1942 after he had enlisted, and they had married in 1946 following his discharge; before the War, he had been a primary schoolteacher. At that stage, he "drank a fair bit". Following his discharge from the Army, and after attending a retraining course with the Education Department, he returned to teaching in 1946. She said that he "drank more" after the War; on the other hand, contrary to smoking references made in medical reports, he had never smoked. His health was good, and he was physically active, both in his teaching and recreationally. His teaching duties included teaching various sports to the children; and he regularly played casual golf and tennis. After several country placements, during which their three children were born, they returned to Brisbane.
27. During this time, and subsequently, he did not stop drinking. Mrs Kratzke detailed the consistent extent of this in an Alcohol Questionnaire which formed part of her application to the Veterans' Review Board. A copy of this appears on folios 58 and 59 of exhibit A, on which she amplified when giving her evidence to us. In this questionnaire she has recorded that the veteran told her that he had started drinking alcohol during the War, because of "peer pressure" and it "eased the stress". However she told us that she "supposed" that he drank before the War, but increased his drinking during his war service. In her questionnaire, she estimated that he drank four to five glasses of draught beer on Friday and Saturday nights at the hotel, two "tall" beer bottles (750 ml) each night at home, three cartons of beer "stubbies" (375 ml) each fortnight at home, two nips of spirits each day, two glasses of wine each day, and 8 litres of sherry a week at home. She recorded that he would "binge drink" about twice a year, and that he told her that drinking "eased his anxiety - it helped calm him down".
28. However, in her evidence-in-chief she was taken to exhibit A, folios 6-8, which is the Alcohol Questionnaire completed by the veteran on 19 January 2004. On this he has recorded (folio 6) that he began to drink alcohol in 1938. She disagreed with him ticking the "no" box to answer the question "Have you ever drunk alcohol on a regular basis?" She said that when she asked him why he did this, he answered "I don't want them to know what I'm doing". She thought that this was because "in those days you'd try to hide it from other people". She told us that she often noticed that "before he had a drink he would be uptight", and the drink would "calm him"; and later in his life, it also helped to relieve his pain in his knees. She affirmed that his drinking never caused him any problems, at work, domestically or socially. She said that he only stopped drinking once, for several months, a few years before he died, when he was in and out of hospital.
29. Mrs Kratzke told us that the veteran was a good teacher, and enjoyed his teaching, maintaining an interest in his students' activities until he retired, and was liked by his students and their parents. He was never reprimanded nor cautioned. He occasionally resorted to corporal punishment with difficult children, but always was reluctant to do so.
30. She said that, although medical reports referred to the veteran having a myocardial infarct in 1960, this was incorrect, and he did not have his first heart attack until the year before Cyclone Tracy struck Darwin, that is, in 1973. By now they were residing at Moggill, and it occurred just after school had resumed following the Christmas holidays. She placed it at that time, because, in the following year, their doctor, Dr Darcy Kelly, went to Darwin to assist in the Cyclone recovery organisation. With this heart attack he also was found, for the first time, to have a raised blood pressure. He was admitted to Greenslopes Hospital, and started on medication for his hypertension, and put on a strict diet. He returned home after some weeks, and continued under Dr Kelly's care. He eventually resumed teaching after about six months, but Mrs Kratzke told us that it took him several years to recover completely.
31. Nevertheless, thereafter he still followed his normal activities, as well as his usual drinking habits. However, he was now developing problems, first with his right knee, followed by his left knee, which began to limit some of his physical pursuits. When teaching, he had a chair on both sides of the classroom to enable him to sit frequently. He remained teaching full-time, without significant periods of Sick Leave, for the next four years, until 1978, when he turned 60 years of age. He then took his retirement, on non-medical grounds.
32. For some time he kept up his physical activities. However, from 1994 he began to suffer a series of heart attacks and strokes, following which he had to abandon ordinary household activities such as "mowing the yard..., washing the car, making the bed, washing windows, gardening, hanging out the washing, vacuuming, cooking or preparing meals, washing dishes, sweeping and grocery shopping..." (exhibit D). Later, although he eventually stopped playing tennis, he continued playing golf, using a buggy for about five years to ease his walking difficulties, until also giving this up in about 1997. Meanwhile, in 1994 he had taken up lawn bowls briefly, but was unable to continue because his balance became unreliable, and he also developed shortness of breath; however he remained a social member of the club because he enjoyed the company (exhibit D).
33. Although he had kept himself fit, as his knee complaints worsened and prevented him from exercising, he gained weight. He also had some additional 'mild heart attacks' which his doctor treated for him at home. His walking difficulties increased, and he "struggled with his weight", and in 1999 he started to consult a dietician for a couple of years (exhibit D). He was put on a strict diet, such as excluding cheese and fatty foods, which he had particularly liked, but after about a year, he decided to resume his previous eating habits. In exhibit D, Mrs Kratzke also stated that although his weight control succeeded "to a point", he was unable to undertake sufficient physical activity for the "amount of food consumed".
34. Although he kept taking his anti-hypertensive medication, his health deteriorated further, and over the remainder of his life he was readmitted to Greenslopes Hospital a number of additional times, for recurring heart attacks, and other complications such as several mild strokes, and impaired circulation to his legs which required surgery. He became increasingly infirm, and for the last few years of his life he required walking aids. After he had a couple of bad falls within two weeks, for both of which they had to call an ambulance, he then went into a wheelchair. He reached the stage when he became completely dependent for all of his cares on Mrs Kratzke. He died aged 89 years, in Greenslopes Hospital on 25 March 2008, following yet another heart attack on the previous day.
Medical Evidence
35. The medical evidence before us was contained in exhibit A, and consisted of:
- The veteran's service documents from 28 June 1941 to 23 October 1945 (folios 1-5);
- Medical report of Dr Glenda Powell, Consultant Physician in Geriatric Medicine & Rehabilitation of Greenslopes, dated 1 April 2004 (folios 19-20);
- Medical report of Dr Jonathan Hargreaves, Consultant Psychiatrist of Greenslopes, dated 18 July 2007 (folios 29-36); and
- The veteran's Death Certificate dated 19 April 2008 (folio 37).
36. Dr Powell interviewed and examined the veteran and Mrs Kratzke on 26 April 2004. She recorded that he had been unsteady for two years, but had not fallen; and he had suffered dizziness for two and a half years. She noted his hearing impairment, tinnitus and osteoarthrosis of his knees, and his previous episode of vagueness and impaired speech. She further noted his past myocardial infarction, but recorded the date as 1960. She also noted his background history of hypertension, gout, central retinal vein occlusion, transurethral resection of prostate (TUR) surgery, and right femoral and peroneal arterial bypass surgery. On examination she found mild left limb neurological signs, impairment of sensation and joint and vibration senses in both feet, and poor standing balance. She also noted the results of two CT brain scans: in December 2000 a right hemisphere (lacunar) infarct was shown; the other scan in October 2003 demonstrated "minor chronic ischaemic changes" with other incidental age-related changes. Dr Powell concluded that the veteran's gait disorder was "due to a combination of his cerebral and peripheral vascular disease with his apparent mild peripheral neuropathy".
37. Dr Hargreaves saw the veteran twice, on 30 November 2006 and 15 April 2007; Mrs Kratzke also attended the first interview. He concluded his Diagnostic Formulation as follows:
In summary, he presented as an 88 year old World War II veteran who experienced a minor level of traumatisation during the was [sic] having been in a place not too far away from an area that was bombed but having no direct contact with the enemy. In any case he denies any significant impact of that experience in the war on his subsequent emotional health and appears to have gone on to have a fairly productive and happy life both in terms of career and family life. There has been a decline in functioning in the last three or four years with cognitive impairment and strokes probably playing a role in that together with hearing and visual impairment. He has now become frail and poorly mobile, and in high need of nursing care on a 24-hour basis. While being a fairly heavy drinker most of his life he does not appear to have developed alcohol-related abuse or dependence problems.
In Conclusion I felt that the presenting features were not consistent with war service related psychiatric disturbance. Any psychological symptoms, which might perhaps be described as an adjustment disorder, relate to his physical impairments and deterioration, and to some degree the cognitive impairment.
CONSIDERATION
38. In arriving at a determination in this matter, we have considered all of the oral evidence and documentary exhibits. All relevant statutory and case law and relevant legislative instruments have also been considered.
Diagnosis
39. We must determine the most appropriate diagnosis, this amounting to the most appropriate diagnosis of the cause of death, or "kind of death". We must decide this on the balance of probabilities and must consider the "collection of relevant symptoms" and the appropriate SoPs (see Fogarty v Repatriation Commission [2002] FCA 1541).
40. The diagnosis here is the diagnosis relevant to the cause of death. Relevantly, the death certificate shows the causes of death to be:
1(a) Myocardial infarction (b) Ischaemic heart disease
41. His fatal myocardial infarction is certified as occurring 24 hours before his death, superimposed on a greater than 10 year history of ischaemic heart disease. From the evidence before us, his first heart attack, or myocardial infarction, in 1973 (or as long as 35 years before his death) was when the veteran's ischaemic heart disease first became clinically evident. We also have Mrs Kratzke's evidence that the veteran had several more subsequent myocardial infarctions thereafter, substantiating the probability that his ischaemic heart disease was persisting, if not progressing. Therefore, on the balance of probabilities, we find that the kind of death was ischaemic heart disease.
Preliminary questions
42. We must consider two pre-conditions before dealing with the substantive questions in the legislation and SoPs:
- Was Mr Vivian Kratzke a veteran under the Veterans' Entitlement Act 1986 (Cth)?
·Is the "kind of death" in question consistent with the SoP which has been issued?
43. In respect of the first, no challenge is made to the veteran's apparent war service. With regard to the second, Statement of Principles Instrument Number 89 of 2007 is relevant. Therefore we proceed on the basis that the veteran has satisfied both pre-conditions.
Step 1 of Deledio
44. In step one, the evidence must contain material which can establish a hypothesis which connects facts or evidence generally, which could link the veteran's death to ischaemic heart disease and which might be shown to have emanated during his World War II service. On the basis of this material, and the submissions made by Mrs Kratzke's solicitor, we find that a hypothesis is made out which connects ischaemic heart disease to the veteran's service during World War II.
Step 2 of Deledio
45. This step seeks to identify an SoP issued by the Authority relevant to the disease and death in question. We identify the relevant instrument to be Instrument Number 89 of 2007 for ischaemic heart disease.
Step 3 of Deledio
46. Having regard to this SoP, this step requires us to make a relatively high level assessment of Mrs Kratzke's case to see whether it fits the template in the SoP. At this stage we are not yet concerned with findings of fact. However, if Mrs Kratzke’s story does not fit the template, it will be rejected. It must be a credible proposition and one that is not too remote or too improbable, pointing to or supporting the hypothesis, and not merely leaving it open as a possibility.
47. In fact, as already noted, Mrs Kratzke is advancing two hypotheses by which the veteran's ischaemic heart disease may be related to his war service.
The First Hypothesis
48. In considering the first of these hypotheses, we turn to Factor 6(a) of SoP Instrument No 89 of 2007, which provides:
(a) having hypertension before the clinical onset of ischaemic heart disease; or…
49. The evidence presented to us is that the veteran was suffering from hypertension when he had his first heart attack in 1973. Therefore, having accepted this as being the time of clinical onset of his ischaemic heart disease, we decide that his hypertension was present before this. This then invokes SoP Instrument No 35 of 2003 for hypertension, Factor 5(b) of which provides:
(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or...
50.This SoP goes on to specify, in "Other definitions" on page 5 as follows:
Other definitions
8. For the purposes of this Statement of Principles:
...
"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
51. The material before us states that the veteran consumed well in excess of 20 standard alcoholic drinks, or 200 grams of alcohol, per week. Therefore we deem that this hypothesis is reasonable, and therefore it should proceed to the fourth Deledio step.
The Second Hypothesis
52. Mrs Kratzke's second hypothesis has two propositions, the first of which invokes two of the Factors of the ischaemic heart disease SoP, namely Factors 6(y) and (z):
(y)being obese for at least five years before the clinical worsening of ischaemic heart disease; or
(z)for males, having a waist to hip circumference ratio exceeding 1.0 for at least five years, before the clinical worsening of ischaemic heart disease; or...
However, this SoP goes on to specify as follows:
Factors that apply only to material contribution or aggravation
7.Paragraphs 6(w) to 6(ss) apply only to material contribution to, or aggravation of, ischaemic heart disease where the person's ischaemic heart disease was suffered or contracted before or during (but not arising out of) the person's relevant service.
53. Because the veteran did not suffer or contract his ischaemic heart disease before or during his service, these two hypotheses do not fit the template. Accordingly we deem that neither of these hypotheses is reasonable, and therefore they do not proceed to the fourth Deledio step.
54. This deeming also has the effect of rendering irrelevant the SoP Instrument No 31 of 2003 for morbid obesity.
Step 4 of Deledio
55.From the foregoing, the hypothesis before us is that the veteran,
by "consuming an average of at least 200 grams per week of alcohol which could not be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension,"
had "hypertension before the clinical onset of ischaemic heart disease,"
"ischaemic heart disease" being the veteran's "kind of death" .
56. We must now consider this hypothesis under s 120(1) of the Act and decide whether we are satisfied beyond reasonable doubt that the death was not war-caused. If we are not so satisfied, the claim must succeed. If we are so satisfied, the claim must fail. It is only now that we are required to find facts from the material before us. In so doing, no question of onus of proof or the application of any presumption will be involved.
57. This requires us to be satisfied, on the facts before us, whether the veteran was consuming an average of at least 200 grams per week of alcohol which could not be decreased to less than that average at the time of the clinical onset of his hypertension; and, if so, we must find that his alcohol consumption was war-caused. If we are further satisfied that he had hypertension before the clinical onset of ischaemic heart disease, we must find that his ischaemic heart disease was war‑caused. Therefore we would have to conclude that his "kind of death" was war‑caused.
58. In the first place, we accept Mrs Kratzke's account of the veteran's alcohol consumption, and that it was well in excess of 200 grams per week.
59. This was including at the time of clinical onset of his hypertension which presumably was in advance of the time of clinical onset of his ischaemic heart disease.
60. However, the veteran himself has recorded that he first began drinking alcohol in 1938, and Mrs Kratzke acknowledged that she supposed that he started drinking before he commenced his war service. Therefore we are satisfied beyond reasonable doubt that he did not start drinking during his war service.
61. Nevertheless, Mrs Kratzke also told us that the veteran had increased his drinking, from the time that she met him in 1942, to when they married after he was discharged from service, so the possibility remains whether his increased drinking may have been related to the stress of his war service. On this question we have the report of Dr Hargreaves, in which he concluded that the veteran had experienced only "a minor level of traumatisation during the war," and that he denied "any significant impact of that experience in the war on his subsequent emotional health".
62. Therefore, on the grounds of Dr Hargreaves’ medical report we are satisfied beyond reasonable doubt that there is no sufficient ground that the veteran's increased alcohol consumption during and after his war service was war-caused. From this we find that any influence that it had on his developing hypertension, and the role of it in causing his ischaemic heart disease, were not war-caused.
63. Accordingly this claim must fail.
DECISION
64. The Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member and Associate Professor J B Morley RFD, Member
Signed: .......................[Sgd]......................................................
Research AssociateDate/s of Hearing 23 April 2010
Date of Decision 7 May 2010
Counsel for the Applicant Brian Balzamo
Solicitor for the Applicant John Cockburn; Cockburn Legal Consulting
Solicitor for the Respondent Martin Hanson; Australian Government Solicitor
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