Lendrum and Repatriation Commission - [2002] AATA 1327

DECISION AND REASONS FOR DECISION [2002] AATA 1327

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1087

VETERANS' APPEALS DIVISION          )
           Re      ENID RUTH LENDRUM
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date23 December 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the death of William Lendrum was war-caused and that his widow, Enid Lendrum, is to be paid a war widow's pension on and from 15 June 1999.
  ...................(Sgd).....................
  IR Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements – war widow's pension – whether veteran's death was war-caused – whether Statement of Principles satisfied – whether reasonable hypothesis established
Veterans' Entitlements Act 1986 ss 11, 13, 14, 120(4), 120B(3), 120B(14), 196B(3)
Repatriation Commission v Smith (1987) 74 ALR 537
Hawkins v Repatriation Commission (1993) 30 ALD 59
Repatriation Commission v Bendy (1989) 18 ALD 144

REASONS FOR DECISION

23 December 2002 Mr I R Way, Member

This is an application by Enid Lendrum (the applicant) for review of a decision of the Repatriation Commission dated 27 January 2000, affirmed by the Veterans' Review Board (VRB) on 18 October 2000, which determined that the death of the applicant's husband, William Lendrum (the veteran), was not related to his service.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T6), and other documentary evidence as follows:
Exhibit A1     Dr Charles Elliott's report – 7 June 2002
Exhibit A2     Clinical Notes Dr Elliott – 12 May 1986
Exhibit A3     Gilshenan & Luton's letter to Dr Elliott – 29 May 2002
Exhibit R1     Dr John Rivers' report – 6 November 2002
Exhibit R2     Dr Peter Phillips' report – 29 April 1987
Exhibit R3     Statement in support of Claim of death – 8 April 1986

Dr C Elliott and Dr J Rivers gave evidence by telephone.

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 dependents of a veteran where the death of a veteran was "war-caused". A dependent of a deceased veteran, including a widow (section 11), may make a claim for a pension under section 14 of the Act.
Mr Lendrum rendered eligible war service in the Australian Army from 18 August 1941 to 3 November 1945. The veteran's service was not operational service and accordingly section 120(4) of the Act requires the Tribunal, in making any determination or decision on Mrs Lendrum's application, to decide the matter to its reasonable satisfaction, or in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537).
The veteran was born on 18 January 1908 and died on 2 November 1985, aged 77 years. The death certificate records the causes of death as:
1. Myocardial infarction (presumptive) (1 hour)
2. Senile dementia (3 years)
The principal issues in this matter are:
(a)whether the veteran's cause of death was from ischaemic heart disease ("IHD") (as contended by the applicant); or
(b)whether the veteran's cause of death was from heart failure due to severe narrowing of both aortic and mitrial valves as a consequence of rheumatic heart valve damage (as contended by the respondent); and
(c)if the cause of death was IHD or aortic stenosis, is the veteran's death war-caused.

Section 120B(3) of the Act provides in part:
"In applying sub-section 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of a person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under sub-section 196B(3) or (12); …
that upholds the contention that the injury, disease or death of a person is on the balance of probabilities, connected with that service."

Where there is a Statement of Principles (SoP) made under section 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran's death and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran's death is, on the balance of probabilities, connected with the veteran's service (section 120B(3)(b)). This last question must also be determined to the reasonable satisfaction of the Tribunal.
The relationship to service required by the SoP must be one of the relationships prescribed in section 196B(14) of the Act:
"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)   it resulted from an occurrence that happened while the person was rendering that service; or
(b)   it arose out of, or was attributable to, that service; or
(c)   it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)    to a place for the purpose of performing duty; or
(ii)   away from a place of duty upon having ceased to perform duty; or
(d)   it was contributed to in a material degree by, or was aggravated by, that service; or
(e)   in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(f)    in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)   in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service."

The Tribunal is satisfied that the relevant SoP in force with respect to IHD is Instrument No 39 of 1999; and with respect to aortic stenosis, Instrument No 55 of 2002.
The applicant's contention is that the veteran had a smoking habit which can be related to his relevant service, such that on the balance of probabilities, the applicant's death was from IHD connected to his relevant service and meeting factor 5(e)(ii) of Instrument No 39 of 1999 (IHD) namely:
"(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i) …
(ii) smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; …"

At the outset of the hearing the respondent conceded, and the Tribunal is satisfied on the material before it and the submissions of both parties, that the veteran had a smoking habit related to his relevant service; that the veteran ceased smoking in 1968; and that the veteran's quantum of smoking was at least five pack years of cigarettes or the equivalent thereof in other tobacco products.
The respondent however, contends that the veteran either died from aortic stenosis which is not related to his service; or if the veteran died from IHD, the clinical onset of this disease was such that it did not occur within ten years of the veteran ceasing smoking.
Instrument No 39 of 1999 relevantly provides:
"Kind of injury, disease or death
2.(a)   This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b)For the purposes of this Statement of Principles, 'ischaemic heart disease' means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i)   myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure, attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are: …
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)     smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)     smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; …
'death from ischaemic heart disease' in relation to a person includes death from a terminal event or condition that was contributed to by the person's ischaemic heart disease;
'terminal event' means the proximate or ultimate cause of death and includes:
a) pneumonia;
b) respiratory failure;
c) cardiac arrest;
d) circulatory failure; or
e) cessation of brain function."

Instrument No 55 of 2002 relevantly provides:
"Kind of injury, disease or death
2.(a)   This Statement of Principles is about aortic stenosis and death from aortic stenosis.
(b)   For the purposes of this Statement of Principles, .aortic stenosis means obstruction to flow across the aortic valve during left ventricular systole. This definition excludes:
(i)aortic stenosis due to rheumatic heart disease;
(ii) aortic valve sclerosis or aortic valve calcification that does not lead to obstruction of blood flow across the aortic valve;
(iii) obstruction to flow across the aortic valve from narrowing of the supravalvular or subvalvular regions; and
(iv) congenital stenosis of aortic valve.
Aortic stenosis attracts ICD-10-AM code I35.0 or I35.2.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that aortic stenosis and death from aortic stenosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.    The factors that must exist before it can be said that, on the balance of probabilities, aortic stenosis or death from aortic stenosis is connected with the circumstances of a person's relevant service are:
(a)   suffering from infective endocarditis before the clinical onset of aortic stenosis; or
(b)   suffering from systemic lupus erythematosus before the clinical onset of aortic stenosis; or
(c)   undergoing a course of therapeutic radiation involving the mediastinum or the chest wall region overlying the heart before the clinical onset of aortic stenosis; or
(d)   suffering from chronic renal failure requiring renal dialysis or renal transplantation before the clinical onset of aortic stenosis; or
(e)   suffering from infective endocarditis before the clinical worsening of aortic stenosis; or
(f)    suffering from systemic lupus erythematosus before the clinical worsening of aortic stenosis; or
(g)   undergoing a course of therapeutic radiation involving the mediastinum or the chest wall region overlying the heart before the clinical worsening of aortic stenosis; or
(h)   suffering from chronic renal failure requiring renal dialysis or renal transplantation before the clinical worsening of aortic stenosis; or
(i) inability to obtain appropriate clinical management for aortic stenosis.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(e) to 5(i) apply only to material contribution to, or aggravation of, aortic stenosis where the person's aortic stenosis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers. …
'death from aortic stenosis' in relation to a person includes death from a terminal event or condition that was contributed to by the person's aortic stenosis;
'terminal event' means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e)cessation of brain function."

Medical Evidence

Dr C Elliott, General Practitioner, first saw the veteran in 1977 and continued to see the veteran until his death some eight years later.
Dr Elliott was the person who certified the veteran's death (T4-9) having last seen the veteran on the day before his death.
The Tribunal had before it the clinical notes of Dr Elliott dated 12 May 1986 (Exhibit A2). These notes record a history given by the patient of palpitations, dyspnoea and diuretic induced gout. The notes then record the condition found to be present as auricular fibrillation, with paroxysmal auricular tachycardia (PAT); cardiac failure and a question as to whether aortic stenosis existed. The notes further recorded that the first attack of PAT was in 1978 (with a blood pressure of 150/80) and the first attack of pulmonary oedema was in 1980. In summary Dr Elliott stated:
"The claimants health made a steady decline from 1977. For the last 2 years he was troubled by increasing depression due to probably atherosclerosis. I am not aware of any valvular lesion which could have resulted from eg rheumatic fever."

The Tribunal notes that the veteran underwent an ultrasound examination of his heart on 8 October 1985 which was reported by Dr P Phillips (Exhibit R2) as follows:
"This was performed on 8 October 1985 and showed severe narrowing of the mitral and aortic valves of the heart. Both of these valves are on the left-side of the heart. The muscle of the left ventricle was thickened because of the increased work of forcing blood through a narrow valve. The chest x-ray confirmed enlargement of the heart secondary to narrowing of the valves. …
The Cardiac Specialists were consulted and they felt that, because of his poor physical health and confusion, cardiac surgery was not appropriate."

In 2002 Dr Elliott was asked by Gilshenan & Luton (the lawyers representing the applicant) to answer a number of questions (Exhibit A3) and his answers to these questions (Exhibit A1) are:
"1Q    Were you treating the veteran for a heart condition as early as 1978?
AYes. I was treating the veteran for a heart condition in 1978.
2Q    Is it likely that he was suffering from the onset of ischaemic heart disease in 1978?
AI consider that it is likely that he was suffering the onset of ischaemic heart disease in 1978.
3 Q    Is atrial fibrillation an indicator that a patient might be suffering from ischaemic heart disease?
AYes. Atrial fibrillation could be an indication that a patient may be suffering ischaemic heart disease. There may, however, be other causes eg thyroid gland disfunction and mitral valve stenosis.
4Q    What in your opinion is the earliest possible onset of the veteran's heart condition.
AI consider determining the date of the earliest possible onset of the veteran's heart condition a difficult question to answer. He was certainly suffering irregular heart beat and heart failure when I first saw him in 1977."

Furthermore in his report of 7 June 2002, Dr Elliott, with respect to his question in 1986 about the existence or otherwise of aortic stenosis, states:
"Now in retrospect, clinically there was probably a cardiac murmur, of undefined aetiology, contributing to cardiac failure."

In his evidence by telephone Dr Elliott affirmed that he first saw the veteran in March 1977, treated him up until his death and knew him "really well".
Dr Elliott said that when he first saw the veteran in 1977 the veteran was aged 69 and that, in his view, he had no doubt the veteran would have been suffering from IHD as everyone of that age, particularly a smoker, would almost certainly have a degree of IHD because of a narrowing of the heart arteries.
In answer to questions in cross-examination Dr Elliott said he had not been treating the veteran for IHD rather he was treating him for fibrillation of his heart and for cardiac failure, the symptoms being shortness of breath.
When taken to Dr Phillips' report (Exhibit R2) with respect to the ultrasound examination of the veteran's heart performed on 8 October 1985, Dr Elliott said he had not been aware of this report until now. In answer to a question from Mr Kelly as to whether, with hindsight and in light of this report, he would change the death certificate where he had recorded myocardial infarction (presumptive) Dr Elliott said:
"Myocardial – it happens when the heart artery is actually blocked and so was a terminal event…
and ischaemic heart disease was – all that means is a narrowing of the arteries that proceeded it. And I certainly – if I had know of the ultrasound I would have put valvular disease of the heart."
On re-examination by Mr O'Gorman, Dr Elliott said that the report of the ultrasound examination (as set out in Dr Phillips' letter – Exhibit R2) did not alter the views he had expressed in his letter of 7 June 2002 (Exhibit A1) that the veteran also suffered from IHD.
Dr Elliott, in cross-examination made the point that at the time he was treating the veteran he would not have known for sure if the veteran had IHD without cutting open the heart, angiograms being rare in those days. Furthermore he said that an ultrasound would not pick up IHD as it did not reveal anything about the state of the veteran's heart arteries.
In answer to a question from the Tribunal about the treatment he was giving the veteran for his heart problems, Dr Elliott said he would have been giving the veteran digoxin (digitalis) and a diuretic, probably lasix.
Dr John Rivers, cardiologist, provided a written report dated 6 November 2002 (Exhibit R1) and gave evidence by telephone. In his written report, Dr Rivers, after reviewing relevant documentation, concluded the veteran probably had progressive mitral and aortic stenosis and that episodes of heart failure and atrial fibrillation were a consequence of the valve pathology which was unrelated to the veteran's history of smoking or in any way to his relevant service. In arriving at this conclusion Dr Rivers said:
"Dr Elliott's observations note that the patient was treated in the 1920's for a heart murmur in Caboolture and subsequent investigation would be appear to prove the patient had serious rheumatic heart valve disease at both aortic and mitral valves. The echo report from the Prince Charles Hospital is not included in the documentation but Dr Phillips' summary of the echo report says severe narrowing at both aortic and mitral valves. In practice mitral stenosis is virtually always a consequence of rheumatic fever so I think this is adequate evidence to conclude that this patient had progressive and severe rheumatic heart valve damage. This pattern of progressive damage over a long period of time with continued stenosis is fairly typical of rheumatic fever and the valve disease is often not manifest till decades after the initial event. I note that the main symptoms and problems for which he was treated in the approximate period 1975 to 1985 (i.e. the decade before his death) were episodes of pulmonary oedema and atrial fibrillation. It is likely that these could both be completely explained on the valve disease. It is true that they could also have been caused by coronary artery disease but there is no record of him complaining of chest pain or of any tests documenting that he had ischaemic heart disease in that period of time. I would be quite satisfied that the rheumatic valve disease would be a totally sufficient explanation for these events and that one would not have to invoke an extra problem of ischaemic heart disease to explain them. Obviously with the limited medical information available one could not completely exclude ischaemic heart disease however. …
On the basis of the fairly limited medical information that is available in this case, I would conclude that it is likely the patient suffered rheumatic fever prior to enlisting in the army and probably had early phase rheumatic valve disease at that stage and during his period of service. It is likely the valve disease continued to progress over the several decades following his discharge from the army and he clearly had evidence of severe aortic and mitral stenosis at the time he was investigated at Prince Charles Hospital. A decision was made at the time because of his other medical problems not to offer cardiac surgery as a solution for this problem. The natural history of this is for progressive deterioration with episodes of heart failure and atrial arrhythmias and eventual death. This fits exactly the clinical course that the patient followed. The only evidence for coronary disease is the death certificate saying that the presumed diagnosis was myocardial infarction but I can find no documentation that would suggest ischaemic heart disease was present as well as the rheumatic heart disease. Given the paucity of documentation (there is not even a report of an ECG), I cannot exclude ischaemic heart disease but I can find no evidence to suggest this was present other than the single comment on the death certificate.
On the balance of probabilities, I would conclude that this patient had progressive rheumatic mitral and aortic stenosis and that the episodes of heart failure and atrial fibrillation were a consequence of the valve pathology and that the valve pathology was unrelated to the previous history of smoking, hypertension or in any way to war service. I trust this is of assistance in your deliberations about this case."

In his evidence by telephone, Dr Rivers affirmed his opinion that mitral valve disease is almost always due to the consequence of rheumatic fever and that the veteran's atrial fibrillation and pulmonary oedema would be exactly the sort of sequence he would expect with the veteran's valve disease. In answer to a question from Mr Kelly as to whether he found any medical evidence that the veteran was suffering from IHD or being treated for it, Dr Rivers said:
"Normally, one could expect symptoms of chest pain or ECG changes to suggest ischaemic heart disease. There's no record in the … [m]edical evidence of any of those things. The only data or basis for supposition I can see was that when he was getting the pulmonary oedema and the atrial fibrillation it would seem that perhaps the local doctor was unaware of the valve disease and then made the supposition that it was due to ischaemic heart disease because that's a common cause of problems, of course…"

And when asked about treatment using digitalis, he said:

"The digitalis almost certainly was being used to treat the atrial fibrillation. The rapid, irregular rhythm – it's impact there is to slow the arrhythmia and it's also used to treat heart failure which would have been appropriate with the episodes of the pulmonary oedema so he could well have been using it for either of those problems. It would not be used to treat coronary artery disease, as such."

In cross-examination, Dr Rivers conceded that he could not exclude IHD in this case and that the applicant's episodes of pulmonary oedema and atrial fibrillation could be caused by coronary artery disease.
Submissions
Mr O'Gorman, for the applicant, submitted that Dr Elliott, the veteran's general practitioner, had been treating the veteran for approximately eight years and had an intimate knowledge of the veteran. Dr Elliott had been treating the veteran for cardiac failure since 1977 and he is clearly of the view that the veteran suffered from IHD and that this was the cause of this death. He so certified on the veteran's death certificate. Furthermore, Dr Elliott, when asked to consider the ultrasound findings of Dr Phillips said that these findings did not alter his view about IHD being a cause of the veteran's death, ultrasounds not necessarily picking up IHD. With respect to Instrument No 39 of 1999, Mr O'Gorman contended that the veteran clearly comes within the meaning of IHD as evidence by the veteran's cardiac failure.
It was submitted that the Tribunal would be reasonably satisfied on the medical evidence before it, that the veteran had IHD from 1977 and his death was therefore war-caused. In so submitting, Mr O'Gorman relied on the unambiguously held opinion of Dr Elliott that the veteran suffered from IHD and Dr Rivers' acknowledgment that, in the case of this veteran, IHD cannot be excluded.
It was submitted that based on the strong evidence of Dr Elliott, which Dr Rivers was not able to exclude, the Tribunal would be satisfied on the balance of probabilities that the veteran had IHD from 1977 with the result that the applicant would be entitled to a war widow's pension.
Mr Kelly, for the respondent, submitted that on balance the Tribunal would be satisfied that Dr Rivers is correct in expressing the opinion that the veteran suffered from rheumatic fever in his younger years and that this had led to the development of valve disease, this being the cause of the veteran's death. In so submitting, Mr Kelly drew the Tribunal's attention to the treatment being provided by Dr Elliott to the veteran for his heart condition which, on the evidence of Dr Rivers, was not a treatment for IHD; and Dr Elliott's evidence that had he known about the ultrasound report he would have put down "due to valvular disease" on the veteran's death certificate.
It was submitted, that although the symptoms of PAT and pulmonary oedema could be due to IHD, there is clear evidence that the veteran suffered from valvular disease and it was this condition that most likely led to his symptoms of PAT and pulmonary oedema and ultimately his death.
Further, it was submitted that if the Tribunal were to be satisfied that the applicant suffered from IHD at the time of his death, the relevant SoP, Instrument No 39 of 1999, requires in this case a clinical onset of IHD within ten years of the veteran ceasing to smoke. As both parties agreed that the veteran ceased smoking in 1968, the clinical onset of IHD would have to be no later than 1978 at which time the veteran was not being treated for IHD and there was no evidence that at this time the veteran had IHD.
It was submitted that on all of the material before it the Tribunal could not be reasonably satisfied that the veteran's death was war-caused.
Consideration
In its consideration and determination of this matter, the Tribunal has before it the medical opinions of Dr Elliott and Dr Rivers. Dr Elliott, the late veteran's general practitioner, knew the veteran very well and treated him from 1977 until the day before his death in 1985 and certified, at that time, that the disease directly leading to the veteran's death was myocardial infarction (presumptive), another significant condition being senile dementia. Dr Rivers is the cardiologist who reviewed the relevant documentation with respect to the deceased veteran and reported thereon to the Department of Veterans' Affairs.
At the hearing in this matter, both Dr Elliott and Dr Rivers agreed that, at the time of the veteran's death, he suffered from aortic stenosis and that this condition contributed to his death. Furthermore, the doctors agreed that the veteran's aortic stenosis was most probably a consequence of the veteran suffering from rheumatic fever in his youth.
The Tribunal is satisfied that these medical opinions are correct. For aortic stenosis to be accepted as war-caused, one or more the factors set out in paragraph 5 of Instrument No 55 of 2002 (Aortic Stenosis) must exist and be connected with the circumstances of the veteran's service. There being no such factors put to the Tribunal and because the SoP specifically excludes aortic stenosis due to rheumatic heart disease, the Tribunal is reasonably satisfied that the contribution to the death of the veteran from aortic stenosis is not war-caused.
However, the applicant's hypothesis with respect to the veteran's death does not rely on aortic stenosis. As set out in paragraph 11 above, the hypothesis is that the veteran suffered from IHD, that his death was from a terminal event contributed to by his IHD, and that his IHD arose from a war-caused smoking habit.
The Tribunal has already accepted (in paragraph 12) that the veteran had a war-caused smoking habit that meets that part of factor 5(e)(ii) of the SoP for IHD with respect to the quantum of smoking, namely:
"smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products."
The question then before the Tribunal is whether the veteran actually suffered from IHD, and if so, was the veteran's heart attack contributed to by his IHD, and if so, was the clinical onset of his IHD within ten years of his ceasing to smoke in 1978.
Dr Elliott is clearly of the view that it is likely the veteran was suffering from IHD with the clinical onset of the disease being in 1978. Furthermore, Dr Elliott, while accepting the significance of aortic stenosis as a factor contributing to the veteran's death, is still of the view that the veteran's IHD was not an insignificant factor contributing to his death.
Dr Rivers, on the other hand, after reviewing the available documentation was of the view that the veteran's death could be definitely explained by his heart valve disease and the natural history of end stage aortic stenosis. In concluding that the veteran had progressive and severe rheumatic heart valve damage, Dr Rivers noted the limited medical information available to him in forming this view and as such said he could not completely exclude IHD. He noted there were no records of the veteran complaining of chest pain or of any tests documenting that he had IHD, and furthermore, when told of the medication prescribed by Dr Elliott, expressed the view that this medication was appropriate in dealing with the veteran's arrhythmia and pulmonary oedema but not to treat coronary artery disease. However, Dr Rivers did agree the veteran's pulmonary oedema and atrial fibrillation could be caused by coronary artery disease.
After careful consideration of all of the material before it, and the submissions of both parties, the Tribunal is reasonably satisfied that the veteran did suffer from IHD, and that he so suffered from 1978.
The question then before the Tribunal is whether the veteran's IHD contributed to his death such that it can be said that his death was from IHD, within the meaning of that term as defined in the relevant SoP.
In determining this matter the Tribunal is mindful that the question of "contributing cause" has been addressed on a number of occasions by the Federal Court.
In Hawkins v Repatriation Commission (1993) 30 ALD 59, his Honour Justice Davies succinctly said:
"A disease will be attributable to eligible service if the service contributed in a material way to its development…
Issues of causation must be approached in a factual way in the light of common sense and human experience..."
And in Repatriation Commission v Bendy (1989) 18 ALD 144, his Honour, in addressing the question of "materiality" and "contributing cause" said:
"In each case, the reference to materiality serve to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, 'of substantial import or much consequence' but rather in its legal sense of 'pertinent' or 'likely to influence'."
Following this approach and considering all the material before it, the Tribunal has formed the view that the veteran's IHD was a contributing cause to his death, such contribution not being de minimis or so tenuous as to be immaterial.
That being so, the Tribunal is satisfied that the hypothesis put forward by the applicant with respect to the veteran's death is a reasonable one which is upheld by the relevant SoP and the Tribunal therefore finds that the veteran's death is war-caused.
The Tribunal sets aside the decision under review and in substitution therefor determines that the death of William Lendrum was war-caused and that his widow, Enid Lendrum, is to be paid a war widow's pension on and from 15 June 1999.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  29 November 2002
Date of Decision  23 December 2002
Counsel for the Applicant        Mr D O'Gorman
Solicitor for the Applicant         Messrs Gilshenan and Luton
Solicitor for the Respondent    Mr J Kelly, Departmental Advocate