Lundgren and Repatriation Commission
[2004] AATA 1232
•23 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1232
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/521
VETERANS' APPEALS DIVISION ) Re MURIEL JOYCE LUNDGREN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd Date23 November 2004
PlacePerth
Decision The Tribunal affirms the Veterans’ Review Board decision of 26 September 2003 rejecting the death of Mr Charles E Lundgren as being war-caused.
..........(sgd RDF Lloyd)............
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex AIF World War 2 – operational service including overseas service as member of “Z Special Force” – died post war in 2003 – causes of death: pneumonia and respiratory failure (both terminal events) with primary cause being end stage Parkinson’s disease – contributory causes rapid atrial fibrillation and hypotension – no reasonable hypotheses – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120A
Statement of Principle concerning Parkinson’s Disease Instrument No 36 of 2002
Statement of Principle concerning Atrial Fibrillation Instrument No 9 of 1996 and No 19 of 2003
Re:Repatriation Commission v Deledio (1998) 83 FCR 82
Brew v Repatriation Commission [1999] FCA 494
Brew v Repatriation Commission [1999] FCA 1246
Johnston v Commonwealth (1982) 150 CLR 331
REASONS FOR DECISION
23 November 2004 Brigadier RDF Lloyd 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mrs Muriel Joyce Lundgren (“the applicant”) for a review of a decision by the Veterans’ Review Board (“the VRB”) dated 26 September 2003, which affirmed an earlier decision of the Repatriation Commission (“the respondent”) of 29 April 2003. This decision refused her claim for pension based on the death of her husband being war-caused.
2. The Tribunal regrets the delay in providing its Decision and Reasons, well beyond the forecast given at the hearing in this matter – particularly does it do so to Mrs Lundgren. The reason has been my unexpected hospitalisation and its aftermath.
3. The veteran on whose service and death the claim is based is Charles Ernest Lundgren and under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”) Mrs Lundgren’s claim for the “War Widow’s Pension” is properly before the Tribunal. Mr Lundgren died on 11 March 2003 and the official cause of death as stated in the death certificate (T7 page 30) is as follows:
“Severe bilateral pneumonia, Respiratory failure (2 days), End stage Parkinson’s disease.
(Contributory Cause) Rapid atrial fibrillation, Hypotension.”
4. The applicant attended the hearing accompanied by Mr J Hewlett, who gave a short oral submission at the conclusion of the hearing. Other than that, Mrs Lundgren was not assisted by an advocate. The respondent was represented by Mr C Ponnuthurai and the Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence:
(a) At the request of the applicant:
·Exhibit A1: Letter from Mrs Lundgren to the Administrative Appeals Tribunal, Perth re Mr Lundgren’s Army service and acceptance of Parkinson’s Disease, dated 6 February 2004.
·Exhibit A2: Letter from Mr A W King concerning Mr Lundgren’s smoking habit and relationship of stress to Parkinson’s Disease, undated but received at the Perth Registry of the Tribunal on 5 July 2004.
(b) At the request of the respondent:
·Exhibit R1: Notes from Fremantle Hospital re Mr Lundgren, covering the period August 2002 to March 2003.
·Exhibit R2: Clinical notes etc, by Dr T Lipscombe re Mr Lundgren.
·Exhibit R3: Correspondence by Dr T Day/Dr T Lipscombe re Mr Lundgren
5. No respondent witnesses were called to give evidence. The applicant did not give formal oral evidence, but contributed information during the process of the hearing which, with the agreement of Mrs Lundgren, was largely led by Mr Ponnuthurai. Both sides of the matter were dealt with in an even-handed manner, to the satisfaction of the Tribunal and with appropriate clarification sought and provided by both parties.
Cause[s] of Death – Relevant Causal Conditions
6. It is common ground, and also the opinion of the Tribunal, based on the evidence, that although Mr Lundgren had had previous bouts of pneumonia in more recent years (controlled by antibiotics), the stated causes of “severe bilateral pneumonia and respiratory failure” were in fact terminal events. This is a generally accepted conclusion in such cases and is further confirmed in the death certificate by the notation in respect of these two conditions of the description “(2 days)”. It is also common ground, and the Tribunal finds, that these two conditions cannot be regarded as being service-related.
7. It is agreed by both parties that the main and underlying cause of Mr Lundgren’s death was Parkinson’s Disease, which in this case had reached its end stage. This is supported by medical evidence in the Fremantle Hospital notes (Exhibit R1), as well as medical opinion evidence contained in Exhibits R2 and R3. It is also the uncontradicted medical opinion provided by Dr Yin, at T10 page 33, who states Parkinsons (ICD Code No 332) as being the cause of death. The Tribunal is relevantly satisfied in this regard.
8. As far as the stated contributory causes are concerned, the medical evidence satisfactorily indicates that hypotension (low blood pressure) was causally related to the medication (Sinemet) Mr Lundgren was taking as treatment for his Parkinson’s Disease. It is the Tribunal’s opinion, therefore, and based on the evidence provided, that any connection with service for hypotension would only be via an acceptance of Parkinsons itself being found to be war-caused. This is further supported by Dr Yin’s opinion evidence at T10 page 33 in which he opines that “… hypotension did not contribute materially to the veterans’ death.”
9. The other stated contributory cause – “rapid atrial fibrillation”, in the context of a relevant heart condition, was discussed at some length by the parties at the hearing. In this regard the question was raised as to whether Mr Lundgren may have suffered from ischaemic heart disease (IHD). Whilst the evidence is to an extent conflicting it appears he had been a heavy smoker during his service and for a time thereafter – according to the evidence of Mr King (Exhibit A2). The smoking period(s) was prior to his marriage and therefore Mrs Lundgren is unable to assist in that regard. She maintains that her husband did have what she regarded as chest pains, which she feels might have been angina, as early as the 1950s. However there is no medical or other authoritative evidence before the Tribunal to support this possibility. In fact there is evidence of medical investigations that were carried out in the last years of Mr Lundgren’s life, the results of which indicate that it is unlikely that he had IHD – at least it wasn’t diagnosed and recorded. Nevertheless Mr Lundgren clearly was not one prone to going to doctors and earlier on (eg in the 1950s), even if he did there are no records covering this period now available.
10. In the end result, as far as atrial fibrillation is concerned, the Tribunal is of the opinion that there is simply inadequate evidence before it to be relevantly satisfied that there was an underlying but undetected and unreported heart condition involved. It is satisfied that there is no sufficient ground to conclude that the condition of rapid atrial fibrillation should or can be construed as anything other than what is stated in the death certificate and other medical records. Dr Yin’s medical opinion evidence again is that this condition “… did not contribute materially to the veteran’s death”. This opinion evidence is not, as far as the Tribunal is able to ascertain, contradicted by any other similarly qualified evidence.
11. Mrs Lundgren also raised the question of asthma, which appears in medical notes concerning her husband. He was treated for a time for this condition, but Mrs Lundgren indicated in her oral evidence that she (as a qualified nurse) was not convinced of this diagnosis. The evidence before the Tribunal takes it no further in this regard – at least to be of relevance in its consideration of her claim for war-caused death of her husband.
12. The probability is also raised by Mrs Lundgren in her evidence that her husband suffered a form of on-going anxiety/stress symptoms as a consequence of his service in Z Special Force in World War 2. Mr King in his documented evidence (Exhibit A2) supports this contention. Mrs Lundgren’s description of her husband’s actions and behaviour, physically and emotionally, was very hurtful for her – starting as it did from the time of their marriage and continuing for a considerable number of years. The details are not repeated here, but by today’s standards the behaviour pattern described would probably lead to a diagnosis of Post Traumatic Stress Disorder (PTSD) related to his service. Members of this special force fought in highly dangerous engagements, frequently behind enemy lines. Much has been written about these men, added to my own knowledge of their exploits, results in my having no difficulty with the hypothesis that many of those surviving suffered, in varying degrees of severity, the condition more recently described as PTSD or a related from of anxiety disorder.
13. Nevertheless, despite my acceptance of the possibility of PTSD, it is indeed a speculative conclusion. There is no recorded medical evidence of Mr Lundgren actually having, or being suspected as having, an anxiety condition. In part this could be because he apparently did not wish to admit he had a problem and/or he apparently did not seek medical advice or attention. He was one of those sort of people. If he did see a doctor concerning this problem, the records of it no longer exist and his wife is not aware of him having done so. In the end result it is with considerable regret that the Tribunal finds itself constrained in this regard. Realistically, there is nothing before the Tribunal, even including the related evidence provided by Mrs Lundgren and Mr King, which would adequately enable it to make a finding of an appropriate causal connection between this evidence concerning a psychiatric condition and the cause(s) of Mr Lundgren’s death.
Veteran’s Service and Related Matters of Law
14. Mr Lundgren served in the Army – the Second Australian Imperial Force (2nd AIF) in World War 2, from 19 November 1941 until his discharge on 4 April 1946. This constitutes eligible war service for that full period and because he served overseas the whole of that time is regarded as operational service as defined in the Act.
15. Because of this operational service, the matter before the Tribunal is to be determined in accordance with ss 120(1) and 120(3) of the Act. Under those provisions the Tribunal is required to decide, on the material before it, whether there is raised a reasonable hypothesis to connect the relevant condition – in this case Parkinson’s Disease – with the deceased veteran’s service. If so it must determine, based on the facts, that this condition and hence his death is service related, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so.
16. Additionally, as the claim was lodged after June 1994, by virtue of s 120A of the Act, the Tribunal is required to have regard to any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”) concerning the condition relevantly related to the veteran’s death.
17. The Tribunal’s manner of consideration of this matter follows, where appropriate, the process set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
Contentions – Hypotheses Raised?
18. The Tribunal accepts that there are hypotheses raised by the evidence concerning Mr Lundgren’s death in relation to the applicants’ claim, as follows:
(a) That his Parkinson’s Disease was in some way causally related to his Army service and the end stage was such that it caused his death, i.e. that war service caused or contributed in a material degree to Mr Lundgren’s death.
(b) That Atrial Fibrillation (a minor contributory cause of death) was either directly caused by Mr Lundgren’s war service, or indirectly via the acceptance of Parkinson’s Disease, and hence contributed materially to his death.
(c) Additionally it is hypothesised that hypotension (a late stage minor contributory cause of death) was caused or contributed to by the medication (Sinemet) prescribed for Mr Lundgren’s Parkinson’s – and therefore is also service related, albeit indirectly via an acceptance of Parkinson’s Disease.
19. The other aspects raised by the applicant concerning her husband’s health post service (paragraphs 9-13 above) are noted by the Tribunal, but in terms of being factors with a possible relationship with his service and his death they must be regarded as highly speculative. From the Tribunal’s view this is regrettable, but under the circumstances an unavoidable conclusion. Were they to be taken as relevant hypotheses they would automatically be found not to be reasonable, because of their speculative nature and the lack of appropriate supportive evidence. Should however further evidence come to light e.g. in relation to IHD or PTSD, then that becomes another matter. For now the Tribunal is obliged to take these matters no further.
Evidence – Clinical Onset of Relevant Conditions – Tribunal’s Conclusions
20. At the hearing, the question of the development of Mr Lundgren’s Parkinson’s Disease, including its time of onset, was discussed at some length (see transciprt). There is recorded medical evidence in this respect in documentation before the Tribunal, and in particular it notes the contents of a letter from Dr T Day (neurologist) dated 5 November 1993 (Exhibit R3) addressed to Dr T Lipscombe. In this Dr Day notes that Mr Lundgren “... quite obviously had Parkinson’s Disease…” as at that date. In more detail he states:
“Over the last two and half years he [Mr Lundgren] has noticed progressive worsening (of) slowness of movement, difficulty in turning over in bed or getting up from a chair, while his walking has deteriorated with both shuffling and stooped posture, his voice has become softer and indistinct … . There is intermittent shaking of the hands, some deterioration of memory and occasional bouts of confusion.”
Dr Day at that time checked Mr Lundgren’s blood pressure and pulse rate – with no adverse comment being made. He placed Mr Lundgren on a medication regime of Sinemet for his Parkinson’s.
21. From the above evidence it is quite clear, in the Tribunal’s opinion, that Mr Lundgren’s Parkinson’s Disease had had its onset by mid 1991 and presumably commencing earlier than that. Mrs Lundgren’s advises in earlier written evidence that she in fact had noticed symptoms from about 1987. She confirmed this at the hearing, stating “… it was about two years after he retired that I first noticed it…”. At T13 page 37 Mrs Lundgren’s evidence in this regard and also giving a relevant picture of the man’s attitude – which the Tribunal finds telling and of importance – is as follows:
“He maintained good health until the age of 62-63 [1987 approximately] when I realised something was not quite right. He retired at 65 and soon after [that] the first symptoms of Parkinsons appeared. For the next few years he was seen by doctors and specialists but it was always the same – there is nothing wrong with him etc etc. It was 7 long years before a new GP [Dr Lipscombe] sent him to Hollywood to be treated for Parkinson’s Disease … . I cared for him at home for the next 9¾ years … . Had I not been a trained nurse I could not have cared for him for such a long time … . In my considered opinion, gained from all my experience of nursing, his service in the specialised job of Z Special Force showed that his health was affected in the early months from his day of discharge and this continued over the next 9 to 10 years … . My husband was a very determined and honest man. It is very unfortunate that this was his character because he refused advice many many times to (sic) his doctor and [did not] apply for an army medical board review. If he had had a medical review it would have been obvious to the doctor that my husband’s condition especially was not normal [and was affecting] his general health over such a long period since his discharge.”
22. The totality of this evidence and further comment by Mrs Lundgren regarding what she now recalls as her husband’s other signs, including being unduly tired, in the 2 to 3 years prior to his retirement, leads to the Tribunal being relevantly satisfied that the clinical onset of his Parkinsons was as early as 1985-1987. That takes the estimate back to its limit – but it is a conclusion that is not contested by the respondent.
23. Establishing the clinical onset of the contributory cause conditions of rapid atrial fibrillation and hypotension is, as already indicated, not really relevant. It is noted that as far as hypotension is concerned, despite the causal medication of Sinemet commencing in 1993, as a terminal condition it cannot be separated in terms of this review from that of Parkinsons.
24. The atrial fibrillation is somewhat different. It does have a history indicating an onset prior to 2002. However the medical evidence before the Tribunal of the atrial fibrillation becoming “rapid” was one occurring just prior to death as a terminal event.
Statements of Principle
25. There are SoPs in force, determined by the RMA, dealing with the relevant condition of Parkinson’s Disease and also Atrial Fibrillation as follows:
(a)Parkinson’s Disease: Instrument No 36 of 2002 – the SoP used at the time of the initial decision and still current.
(b)Atrial Fibrillation: Instrument No 9 of 1996 – the SoP valid at the time of the initial decision.
: Instrument No 9 of 2003 – the SoP now current.
26. The Tribunal is required in the first instance to assess the matter using the SoP now current. Should it not find in favour of the applicant as a result, then the applicant has the accrued right for the matter to be assessed using the SoP current at the time of the respondent’s decision.
Requirements of Relevant SoPs
27. Parkinson’s Disease
(a)The SoP sets out the factors that must as a minimum exist in relation to a veteran’s relevant service to cause or relevantly contribute to (or aggravate) Parkinson’s Disease or death from Parkinson’s Disease. In this respect the SoP states that the only factor is “… inability to obtain appropriate clinical management for Parkinson’s Disease”.
(b)The SoP also defines death from Parkinson’s Disease as being “… in relation to a person, includes death from a terminal event or condition that was contributed to by the person’s Parkinson’s Disease”.
28. Atrial Fibrillation. The Tribunal notes from the SoPs the requirement of the only relevant factors as being:
(a) Instrument No 9 of 1996 – Factor 5(a):
“suffering from cardiac disease at the time of the clinical onset of atrial fibrillation”
(b) Instrument No 19 of 2003 – Factor 5(b):
“suffering from ischaemic heart disease at the time of clinical onset of atrial fibrillation”
It is therefore clear that acceptance of atrial fibrillation as being related to service depends first upon acceptance of IHD, or other cardiac disease, as being war caused.
Tribunal’s Findings
29. Atrial Fibrillation:
(a) The Tribunal has earlier concluded that there is insufficient evidence to appropriately reach a conclusion that Mr Lundgren suffered from IHD or any other relevant heart condition at the time of the clinical onset of his atrial fibrillation condition (some time in the years leading up to 2002); hence:
(b) the relevant requirement of the SoP is not met, i.e. the hypothesis raised concerning atrial fibrillation and a relevant connection with the veteran’s service and consequent death does not, in the Tribunal’s opinion, fit the template of the SoP;
(c) that the stated cause of death in this regard was one of rapid atrial fibrillation – the causes of the rapidity not being provided in the medical evidence. It is therefore assumed by the Tribunal to be a terminal situation in the circumstances, stemming from Parkinsons.
30. For Parkinson’s Disease – the main and overwhelming causal factor of Mr Lundgren’s death – the SoP makes it clear that this condition may only be regarded as being related to service if there were a service inability to obtain appropriate clinical management for the condition. That is:
(a) In all cases, not just in the case of Mr Lundgren, this obviously requires that the condition be present during the period of eligible service.
(b) In that respect, Mr Lundgren’s Parkinson’s Disease had its clinical onset in the mid 1980s, at the earliest. His service ended in 1946 – some 40 years before that.
(c) Consequently, the requirement in the SoP in this regard is not met, i.e. the hypothesis raised concerning Parkinson’s and a relevant connection with the veteran’s service, and consequent death, in the Tribunal’s opinion does not fit the template of the SoP.
31. For Hypotension – the only relevant evidence before the Tribunal is that this minor contributory factor was causally related to the consumption by Mr Lundgren of the medication Sinemet which was specifically prescribed for his Parkinsons. As Parkinson’s Disease has been found by the Tribunal not to be related to service, neither then is the condition of hypotension.
32. Following the Deledio process, because the raised hypotheses do not meet the requirements stipulated in the relevant SoPs, they are deemed by the Tribunal not to be ‘reasonable’, under the provisions of the Act. As a consequence the claim itself must fail.
Conclusion
33. To the extent possible in the circumstances, the Tribunal reaches its final conclusion with regret. Clearly, Mr Lundgren was a man who had served his country in war in particularly hazardous circumstances in a uniquely dangerous organisation. Post war he had apparently refrained from recognising his ill-health and had been reluctant to seek advice or help – until too many years had passed. This, in the Tribunal’s opinion, had not affected the onset of his Parkinson’s in all probability, but it is highly likely to have kept from formal recognition and treatment other disorders he appeared to have (including probable PTSD). There is nothing the Tribunal can do about this aspect, except to record it, as it has.
34. The Tribunal is satisfied beyond reasonable doubt, based on the reasons and conclusion set out, that the death of Mr Lundgren is not war-caused.
Decision
35. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the VRB decision under review of 26 September 2003.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd
Signed: .........(sgd V Wong)…........
AssociateDate/s of Hearing 22 September 2004
Date of Decision 23 November 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent Department of Veterans' Affairs
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