Lind and Repatriation Commission - [2000] AATA 516

DECISION AND REASONS FOR DECISION [2000] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/604

VETERANS'     APPEALS     DIVISION )
           Re      JEAN ALBERTA LIND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss E. A. Shanahan, Member

Date27 June 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

........(Sgd) E. A. Shanahan..........
Member
CATCHWORDS
VETERANS' AFFAIRS – death due or related to war service – hypertension and cerebrovascular accident – smoking history and date of cessation of smoking
Veterans' Entitlements Act 1986
Statements of Principles:
Instrument No. 142 of 1996 concerning cerebrovascular accident

REASONS FOR DECISION

27 June 2000 Miss E. A. Shanahan, Member

The applicant, Mrs Jean Alberta Lind, seeks review of the decision of the Veterans' Review Board ("VRB") dated 16 April 1999. The VRB had found that her late husband, Mr Oscar Claude Lind's death on 20 September 1996 from a cerebrovascular accident was not related causally to war service.
In the interim between lodgement of the application on 10 June 1999 and the hearing conducted on 19 April 2000 the applicant's health had deteriorated rapidly and she had been admitted to the Freemason's Hall in Prahran. She was not in a position to give evidence before the Tribunal. The Tribunal thus relied on the section 37 (Administrative Appeals Tribunal Act 1975) documents ("the T documents") and various documents tendered by the parties.
At the hearing the applicant was represented by Mr G. Moore of Counsel and the respondent by Mr K. Herman, an advocate for the Department of Veterans' Affairs. The T documents were taken into evidence. The applicant tendered three reports, namely the report from the Frankston Vascular and Cardiac Centre, dated 16 May 1994 (Exhibit A1), a further report from The Vascular Centre (formerly the Frankston Vascular and Cardiac Centre) dated 9 August 1999 (Exhibit A2) and a report from Professor J. Cade, dated 23 December 1999 (Exhibit A3). It is noted that all of these exhibits form part of the respondent's documentation. The respondent tendered a report of Dr W. C. Lyon (undated) and a letter from Dr W. Heath dated 2 February 1972 (Exhibit R2). As no evidence was presented to the Tribunal, the representatives of both parties made verbal submissions on their contentions.
The applicant is the widow of Oscar Claude Lind, born on 21 October 1908. The veteran died on 20 September 1996 and the cause of death was entered on the death certificate as a cerebrovascular accident (T13).
The veteran saw operational service with the RAAF between 31 October 1941 and 22 September 1945. During this period he served overseas thus his service constituted operational service under the Veterans' Entitlements Act 1986 ("the Act"). Subsections 120(1) and 120(3) of the Act apply and this Tribunal is required to find that the veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
The claim for widow's pension was lodged on 8 November 1996, that is, after the amendment to the Act inserting section 120A (date of effect 1 June 1994). Thus the reasonableness of any hypothesis must be assessed in relation to the relevant Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA"). In view of the Federal Court decision in Keeley v Repatriation Commission [1999] FCA 1103 which has subsequently been affirmed by the Full Court of the Federal Court (Repatriation Commission v Keeley [2000] FCA 532, the relevant SoP at the time of the hearing in this matter of 19 April 2000 is SoP Instrument No. 142 of 1996.
The SoP Instrument No. 142 of 1996 relates to cerebrovascular accident and provides the factors which 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. The parties agreed that the relevant factor was 5(j) which relates to the smoking history of the deceased veteran. This provides:
"(j) for cerebral ischaemia only, smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
…"
The documentary evidence before the Tribunal regarding the late veteran's smoking history was conflicting. The report of Dr Heath, dated 2 February 1972, states that the late Mr Lind ceased smoking in 1966. It also records that prior to cessation Mr Lind was smoking 60 cigarettes daily. The applicant, Mrs Jean Lind, had provided two statements regarding her late husband's smoking habit. In the first, dated 24 October 1996, she indicated that her late husband had started smoking on 26 September 1932, some nine years before his enlistment in the RAAF, and had smoked 20 per day. This report also states that he ceased smoking in 1971. In a letter dated 10 August 1998, the applicant reported that her late husband started smoking before his enlistment but smoked only lightly. She estimated this at about 10 cigarettes per day. She stated that by the time he was demobbed from the RAAF, he had become a regular smoker, smoking one packet, i.e. 20 cigarettes per day but once more she confirmed that he had ceased in 1971. The Tribunal can only deduce that the late veteran ceased smoking somewhere between 1966 and 1971. There is no evidence before the Tribunal that the late veteran's physical activity was impaired in the five years before the clinical onset of cerebrovascular disease which may be dated from the onset of his epilepsy in 1985.
In 1985 the late veteran developed epilepsy and underwent an electroencephalogram ("EEG") which showed an abnormal focus attributed to a cerebral infarct. There is no clinical data available to date an episode of cerebral infarction.
In a statement to the VRB dated 10 August 1998, the applicant advised that her late husband's bronchitis had become more severe in the six years prior to his death and he had only been able to walk short distances in the house. She made no comment as to his level of activity prior to 1992.
While the VRB had addressed the late veteran's chronic bronchitis which had been found to be war-caused by a Repatriation Board decision of 30 June 1955, they found that none of the minimum factors set out in the relevant SoP were satisfied. The question of the late veteran's chronic bronchitis and its effect on his level of physical activity was not raised before this Tribunal as both parties had agreed that the issue could be limited to factor 5(j) of SoP Instrument No. 142 of 1996.
Additional evidence is found in the T documents regarding the late veteran's smoking history. Dr M. Scott, in a letter dated 6 October 1982, records that Mr Lind ceased smoking approximately 12 years ago. This would set the cessation date at 1970. In a letter from Mr A. Johnson, dated 4 August 1993 (T11 page 36) Mr Johnson has recorded that Mr Lind stopped smoking 30 years ago, that is in 1963.
This Tribunal is confronted with four different dates on which the late veteran is said to have ceased smoking, namely, 1963, 1966, 1970 and 1971. There is no debate that Mr Lind commenced smoking nine years before he enlisted in the RAAF, however, the amount he smoked prior to enlistment is in dispute on the basis of the applicant's two statements. In the first of these she declared he smoked 20 per day and continued to smoke 20 per day until he ceased smoking in 1971. The later statement of 1998 records that he smoked 10 per day between 1932 and enlistment and, on return from his war service, smoked 20 per day until he ceased in 1971. His smoking habit was not war-caused on this evidence but may have been aggravated by his service.
While acknowledging the beneficial nature of the Act, this Tribunal is of the opinion that the greatest weight must be placed on the report of Dr Heath, dated 2 February 1972 (Exhibit R2) as this is the most contemporaneous report and outlines the history obtained from the late veteran at a time when he was aged 63 years and still working.
On the material before the Tribunal the minimum factors which must exist before a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service have not been met. The Tribunal is satisfied beyond reasonable doubt that the hypothesis raised is not reasonable. The decision of the VRB, dated 16 April 1999, is affirmed and the applicant's claim for a war widow's pension is unsuccessful.

I certify that the fifteen (15) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E. A. Shanahan, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  19 April 2000
Date of Decision  27 June 2000
Counsel for the Applicant        Mr G. Moore
Solicitor for the Applicant         Peter J. Liefman
Solicitor for the Respondent    Mr K. Herman, Departmental Advocate