Luxton and Repatriation Commission - [2002] AATA 1177

DECISION AND REASONS FOR DECISION [2002] AATA 1177

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/1071

VETERANS APPEALS DIVISION        )
           Re      BIRGIT LUXTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Dr P. Fricker, Member

Date25 October 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  .........Sgd Mr J Handley....................
  Senior Member
CATCHWORDS
Veterans' Entitlements - Widow's application - applicant and deceased married in 1988 - World War II pilot - little known of past medical history - whether deceased was 'obese' - whether any reasonable hypothesis connecting service with obesity and ischaemic heart disease, hypertension or diabetes - decision affirmed.
Critch v Repatriation Commission (1996) 43 ALD 574
Repatriation Commission v Deledio (1998) 49 ALD 193
East v Repatriation Commission (1987) 74 ALR 518

REASONS FOR DECISION

25 October 2002 Mr J. Handley, Senior Member Dr P. Fricker, Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 4 July 2001. The VRB then decided to affirm a decision previously made by the Repatriation Commission on 15 June 1999. The Commission then decided that the death of Walter Luxton was not war-caused.
The late Mr Luxton died on 25 July 1995. The certified causes of death were "myocardial infarction - sudden: ischaemic heart disease - 15 years: senile dementia: - 3 years". Mr Luxton was then 76 years of age. This application is brought by Mrs Luxton as his widow.
The late Mr Luxton was a member of the Royal Australian Air Force (RAAF) between 23 June 1940 and 6 September 1945. As a pilot he served in Canada and the United Kingdom. The whole of his service is operational service within the meaning of the Veterans' Entitlements Act 1986. Accordingly, Mrs Luxton is entitled to the beneficial standard of proof.
At the hearing, Mr Larkin as Counsel appeared on behalf of Mrs Luxton and Mr Purcell appeared on behalf of the respondent. Evidence was given only by Mrs Luxton. A number of documents were received into evidence and will be referred to later in these reasons.
The hypothesis advanced by Mr Larkin on behalf of Mrs Luxton was that the death from myocardial infarction was related to hypertension and/or obesity and/or diabetes, which he submitted had an association with the deceased's service.
Mr Larkin submitted that the deceased was a pilot with the Southern Command in England and who was shot and wounded. It was submitted that by reason of that event, the deceased suffered an emotional reaction, which precipitated excessive food consumption causing weight gain and obesity, which contributed to death. Additionally, it was put that the obesity was responsible for the hypertension and/or the diabetes, which also contributed to death.
A number of Statements of Principle were relied upon which may relevantly be described as follows-
Ischaemic Heart Disease - Instrument No. 38 of 1999 - Factors 5(c) and/or (t)
"(c)being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease; or
……
(t)being obese for a period of at least two years within the 15 years immediately before the clinical worsening of ischaemic heart disease; or"

The expression "being obese" is defined at paragraph 8 of the Instrument as follows-

" "being obese" means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of "being obese" signed by the Chairman of the Authority on 16 August 1996.
The measurement used to define "being obese" is the Body Mass Index (BMI).
The BMI = W/H², where:
W is the person's weight in kilograms and
H is the person's height in metres.
"Being obese" is where the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. "Being obese" develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of "being obese" it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater;"

The 'cause' Mrs Luxton relied upon, as specified in the Repatriation Medical Authority's Statement of 16 August 1999, was (a):

"exposure to an environment which encourages caloric intake where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity and which has resulted in a weight gain of at least 20% of the base line weight".

The expression "base line weight" is defined within the Statement as "the weight level which was being maintained prior to the effect of the particular factor specified".
Hypertension - Instrument No. 31 of 2001 - Factor 5(a) & (o) which read-

"(a) being obese at the time of the clinical onset of hypertension"
"(o) being obese at the time of clinical worsening of hypertension".

Whilst the formula contained within the definition of "being obese" as appears in the above Instrument is the same in the Instrument relating to hypertension, the definition of "being obese" is different and it reads as follows-

"being obese" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person's weight in kilograms and
H is the person's height in metres;"

Both representatives agreed prior to the evidence of Mrs Luxton that the clinical onset of ischaemic heart disease was in 1975 and the clinical onset of hypertension was in 1977.
Diabetes - Instrument No. 82 of 1999 (identical to No. 46 of 1999) Factors 5(b) & (u)

"(b) in relation to type 2 diabetes mellitus, being obese for a period of at least ten years before the clinical onset of diabetes mellitus; or
…..
(u) in relation to type 2 diabetes mellitus, being obese for a period of at least ten years before the clinical worsening of diabetes mellitus;"

The definition of "being obese" is identical to the definition found within the ischaemic heart disease Statement of Principle.
Birgit Olga Luxton

Mrs Luxton lodged a proof of evidence prior to the commencement of the hearing. It records that she first met Mr Luxton in 1987 and married him in 1988. She understood that he was a Member of the RAAF during the Second World War, who served in Canada and the United Kingdom as a pilot. She understood that the duties of Mr Luxton included coastal patrol and flying "high ranking officers for top secret meetings in Malta". She recorded that her husband suffered an injury to his right calf muscle when an aircraft being flown by him was struck by enemy fire.
The proof of evidence also records that she understood that her husband previously suffered from high blood pressure and diabetes and he had had by-pass surgery in the United States in 1981. She said that her husband was not obese during the time that she knew him. Apparently Mr Luxton was about 6 feet in height and weighed approximately 12 stone at the time that she and Mr Luxton first met. He was a thin man at their marriage in 1988. However, she has subsequently learnt that her late husband "lost a lot of weight after his by-pass surgery" and her husband told her that he had been "very overweight" prior to his surgery in 1981. Mrs Luxton referred to some photographs of her husband which she understood were taken in the 1960's or 1970's and she also found a pair of his trousers "which would virtually fit two people of the size that Tony was when I met him". Mrs Luxton assumed that her husband amassed weight to relieve his anxieties. She also recalled that a friend of her late husband had told her that there was an occasion where Mr Luxton weighed in excess of 17 stone. A photograph was produced by Mrs Luxton (Exhibit C) depicting her husband in the late 1960's. She acknowledged that it was difficult to estimate his weight from the photograph (the photograph is also found at page 47 of the T-documents).
In cross-examination, Mrs Luxton said that she and her husband married in 1988, after they lived in her house at Main Ridge for a short period. She said they thereafter lived together in that house until her husband was admitted to a nursing home by reason of dementia, approximately 2 years before his death. She recalled that prior to him being admitted to the nursing home he was "mobile", would swim on two or three occasions per week and was able to manage some gardening.
Mrs Luxton recalled her husband as being a "gentleman". She said he was caring, kind and had a good sense of humour. When she first met him he had "lost his farm, his money, his car, and his horses". She said that it was "a great trauma" and her husband was then very upset. She did not know whether he was then consuming sedatives, but sedatives were later provided after dementia was diagnosed.
Contentions
Mr Larkin, on behalf Mrs Luxton, submitted that the late Mr Luxton was engaged in operational service between 1940 and 1945. In 1942, he was shot and wounded which precipitated a psychological disturbance, which had an ongoing affect and which required treatment.
Mr Larkin noted that the weight of the deceased was recorded in 1940 at enlistment at 84 kilograms and in 1945 at discharge at 99 kilograms. He submitted that the weight gain was by reason of the physical impairment and the psychological injury. The next known reference to the deceased's weight was in 1981, where he was described as being "obese" (page 46). The evidence of Mrs Luxton who said that she was told that her husband had at one time weighed 17 stone and had also been told by him that he was at one time "a huge" person. He said this was confirmed when she located some of his clothing after his death.
In 1983, the deceased's weight was recorded at 90 kilograms and this was at a time after he had lost approximately 2 stone in weight following the by-pass surgery in 1981. It followed, on this analysis, that the deceased would have been in excess of 104 kilograms at 1981. It was submitted that the deceased had been obese, in the range of 104 kilograms, for some years prior to the surgery in 1981 and certainly prior to a "heart attack" in 1975 (refer report from Dr Cato).
It was submitted that the definition of "being obese" was satisfied and the BMI of the deceased was greater than 30, if it is found that his weight was at 17 stone. It was therefore submitted that the hypothesis advanced on behalf of Mrs Luxton had been raised and was reasonable. It was submitted that it was not fanciful or unreal and Mrs Luxton was entitled to succeed in these proceedings.
Mr Purcell submitted that there are no documents or evidence, which points to the deceased ever having a BMI of 30. He submitted that the closest reading to a BMI of 30 is a finding of the deceased's weight in 1981 of 102 kilos, which would establish a BMI of 29.46.
Mr Purcell, by reference to documents filed, disputed any association between the injury suffered by the deceased during service and his weight gain. He noted that in July 1942, the deceased returned to flying following medical board examinations and in 1943 it was recorded that he was living with his family. He submitted that in the absence of documented evidence of the deceased's weight, the Tribunal could only rely on the evidence of Mrs Luxton and draw inferences from the photograph produced and from the clothing located after his death. Whilst acknowledging that there may be a conclusion that the deceased was obese in the 1960's, there was nothing, he submitted, which pointed to the deceased being of a weight which would attract a BMI of 30. Nor is there any evidence of the duration of the deceased's weight attracting an equivalent BMI (which was submitted as being relevant having regard to the factors of the Statements of Principle in issue in these proceedings). It was submitted that there was no more than a mere possibility of the deceased being obese at a BMI of 30 and on the basis of East v Repatriation Commission (1987) 74 ALR 518, the claim must fail.
As to whether there is any connection between service and weight gain, Mr Purcell submitted that the case advanced by the applicant invited an assumption that the deceased endured an increase in caloric intake resulting in a weight gain of at least 20% of the base line weight by reason of service. He said there was nothing pointing to this conclusion. He noted that the deceased had returned to flying and there was no evidence of any loss of mobility. It was acknowledged that the deceased was an anxious person (there are references in the documents to the deceased suffering air sickness said to be associated with an emotional overlay). However, he said there was nothing which pointed to an increase in weight by reason of caloric intake between 1940 and 1981 when he was then found to be 104 kilograms and a BMI of 29.4, by reason of the events within service.
It was noted that the deceased was actively involved in industry and in horse and car racing. He was then married, he had children and he travelled extensively overseas.
As to whether the deceased was an anxious person, it was noted that the only evidence of anxiety was at or about the time that the deceased lost his farm and his possessions in or about 1987. It was submitted that he should be found to have been a well adjusted, contented person at least until that time.
In relation to the condition of diabetes, similar submissions were put by Mr Purcell, namely, that there was no evidence as to the clinical onset of diabetes and the absence of evidence pointing to obesity caused this (alternative) hypothesis to fail.
Conclusion & Reasons For Decision
In Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, the Full Federal Court decided that there were four stages of analysis is to determine whether injury or death of a veteran was related to service. Those stages are reproduced as follows-
"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 so doing, no question of onus of proof or the application of any presumption will be involved."
The first stage is satisfied because there is material which points to a hypothesis connecting death with service. The second stage is also satisfied because there are Statements of Principle in force.
We have been unable to find that the hypotheses raised are reasonable in order to permit satisfaction of stage 3. This is because the 'template' of the Statement of Principles is not consistent, on the material raised, with the deceased being "obese" as defined at or during the periods specified in the applicable factors.
Having heard the evidence of Mrs Luxton and read the numerous documents filed, we have little doubt that the deceased suffered a psychological reaction to being wounded which in turn was responsible for an anxiety state.
Mr Beckingsale reported in July 1999 (T-8) that the deceased suffered shrapnel wounds to his leg whilst flying an aircraft. For the remainder of that journey he "lay on the floor of the aircraft while an inexperienced second pilot brought the aircraft home for a night landing. He was operating at a time when aids were not well developed and there were plenty of avenues for stress".
Notes completed in 1942 page 55-56 record-
"Following the incident in which he was wounded this officer has developed a chronic anxiety neurosis with some depressive features. On his return to flying in September 1942 he developed such severe anticipatory symptoms as to be quite useless in the air. This was not a true motion sickness and at times he would be sick even before setting into the aircraft".
In another medical report found at page 58-59 it is recorded-
"In all of these he has suffered airsickness - varying from nausea to profuse vomiting and prostration. In one trip when conditions were not good he was hors de combat for approximately 10 hours out of 12. I have flown with him and know the effort he has made to overcome it. It may be in part due to toxic absorption from his wounded leg but I do not feel personally that this could be sufficient cause. Could he please be seen by the neuro psychiatrist with a view to medical board and grounding because he admits he is unable to give his captain fair support".
On 22 February 1943, a neuro psychiatrist, having obtained a history of the applicant being wounded, obtained a history that during the flight when he was wounded, in addition to lying on the floor of the aircraft being flown by an inexperienced second pilot, the aircraft itself would have been required to make a "bellylanding". The doctor noted that the deceased did not previously suffer from motion sickness and was, on one occasion, suffering motion sickness before an aeroplane left the ground. He reported that the "psychiatric effects are playing a major part in the production of his air sickness".
On 9 September 1943, a "hospital or sick list record card" found at page 63 records the deceased as suffering an anxiety state.
In a medical report dated 26 April 1999, found at page 27, Doctor Roth reported that he had known Mr Luxton since 1963. Having examined his service history, he was satisfied that the deceased "suffered what we would now refer to as post traumatic stress disorder. This followed being wounded while piloting an aircraft, which was hit by anti-aircraft fire in 1942".
However, there is no documentary material which associates the apparent anxiety state or PTSD with consumption of food to be sufficient to cause "obesity", as defined within the Statements of Principles.
There are many applications that this Tribunal has heard, which would point to an association between an anxiety state and food, alcohol or cigarette consumption as a means to either relieve stress or by way of "comfort". There are no documents on the Tribunal file, which would point to this association, but we would be prepared to make that assumption.

Further, there appears little doubt that the deceased did suffer from ischaemic heart disease (refer notes of Dr Roth) which in whole or part, would have been responsible for myocardial infarctions in 1975 and in 1981, giving rise to coronary surgery in the United States. However, we are unable to find that the deceased had been "obese", as defined, for a period of at least 2 years within the 15 years immediately before the clinical onset of ischaemic heart disease. Both parties properly agreed that the clinical onset of ischaemic heart disease was 1975 when the first infarct occurred. We are accordingly required to inquire into the applicant's weight and whether he was obese within 15 years before 1975, namely between 1960 and 1975 and then whether he was obese for a period of 2 years.
The last documented recording of the deceased's weight before 1960 was on 6 September 1945 (T-15), where he was then found to be 98.3 kilograms. The next documented recording of the deceased's weight was on 21 July 1983 where, in a repatriation medical examination, the deceased was then found to have a weight of 90 kilograms. In the notes of that examination, the medical officer recorded "weight steady but two stone less since 1981". Making the conversion from imperial to metric weights, the weight of the applicant therefore in 1981 would have been 102.7 kilos. Having regard to his height of 186.7 cm and applying the formula within the definition of "being obese" within the Statements of Principles, a BMI of 29.5 is achieved.
The beneficial nature of Veterans' legislation would ordinarily permit us to make a finding of a BMI of 30, having regard to the imprecise data that we are required to review. However, because of the absence of material pointing to the deceased's weight between 1945 and 1981, we cannot find that there is material which points to the deceased having a BMI of 30, for two years, in the period between 1960 and 1975.
We acknowledge the evidence of Mrs Luxton that she had been told by her husband that he was a "huge man" and that she had located a pair of his trousers after he died which she said was suggestive of information that she had heard that he was at one stage 17 stone in weight. We are unable to infer from the photograph produced of the deceased, believed to have been taken in the 1960's, that his weight then would have been in the vicinity of 17 stone. We have no doubt that there was a period in the life of Mr Luxton where he was in the vicinity of 17 stone - but this does not assist us in the present analysis. An assumption of a fact is permissible only if it may be reasonably inferred or pointed to or raised by the material. The sufficiency and nature of that material must also be observed. To make the assumption that the deceased did have a BMI of 30 for two years in the 15 year period immediately before 1975 would not be permissible because it would be made in the abstract (refer Critch v Repatriation Commission (1996) 43 ALD 574 ("Critch")).
If the clinical onset was 1975, as conceded, we assume the clinical 'worsening' was at 1981, immediately before the by pass surgery. A period of 15 years preceding would be 1966-1981. For the above reasons, we cannot point to any material in this period, which would indicate a BMI of 30 for 2 years.
Insofar as the hypothesis connecting service with hypertension is concerned, both parties agreed that the deceased was hypertensive at 1977. We agree with that finding and note that the service medical records demonstrate that on 21 July 1983, the deceased then had a blood pressure of 180/108 and the medical officer found that the deceased had been hypertensive for "5-6 years".
Nonetheless, having regard to the above findings we are unable to conclude that the deceased was "obese" at the time of the clinical onset of hypertension namely at 1977. The blood pressure in 1983 of the deceased was 180/108. The next available blood pressure recordings were throughout 1988 and 1990, where it ranged between 160/90 to 120/70. There are no records of the deceased's blood pressure being greater than 180/108. When that reading was taken in 1983 the medical officer recorded that the deceased had been hypertensive for the preceding 5-6 years. We therefore find that the clinical 'worsening' occurred in 1983. For the reasons expressed earlier, we cannot locate any material pointing to a BMI of 30 in 1983. As we have found earlier, it would appear the deceased had a BMI of 30 in 1981 but he subsequently lost 2 stone in weight. His BMI in 1983 would therefore be less than 30.
In relation to the hypothesis connecting service with diabetes, whilst there appears no doubt that the deceased did suffer from that condition, its onset is not known. Doctor Cato in a report dated 27 May 1981 recorded "diabetic many years". The report in preparation for the surgery in the United States on 23 June 1981 also records Mr Luxton then as being diabetic (page 46). We can find no earlier or other reference prior to 1981 of Mr Luxton being a diabetic although it would appear that at some time prior to that year that diagnosis had been made.
Factor 5b of Instrument No. 46 of 1999 and No 82 of 1999 both record that a reasonable hypothesis will be raised connecting diabetes with "being obese" for a period of at least 10 years before the clinical onset.
The factor in each of the Statement of Principles refers to "type 2 diabetes". It is not known to us what type of diabetes was suffered by Mr Luxton but assuming that it was "type 2" diabetes, we cannot be satisfied that this factor does exist as a minimum.
The reference by Dr Cato to the presence of diabetes for "many years" does not permit us to make any reasonable assumption as to the clinical onset of the condition. Obviously the clinical onset of diabetes was before 1981 but the year of clinical onset is unknown. A finding based on assumption of the meaning to be given to the words "many years" would be based upon uncertainty, would be speculative and would not be an assumption which is permitted having regard to the decision of Critch.
For the reasons given above we are not able to find on the material that the deceased was obese as defined during the relevant periods.
In all of the circumstances, the decision under review is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member and Dr P. Fricker, Member
Signed:         Katherine Navarro..............................
  Associate
Date/s of Hearing  20 June 2002
Date of Decision  25 October 2002
Counsel for the Applicant        Mr Larkin
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent    Department of Veterans' Affairs