MacGregor and Repatriation Commission
[2008] AATA 230
•26 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600750
VETERANS' AFFAIRS DIVISION ) Re DAPHNE MACGREGOR (deceased) Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice and Dr Roderick McRae, Members Date26 March 2008
PlaceMelbourne
Decision The Tribunal affirms the decision of the Repatriation Commission made on 19 September 2005 refusing Mrs MacGregor’s claim for a pension because of the death of her husband.
...................[Sgd].....................
Mr Egon Fice
Member
Veterans’ Affairs – war-caused disease – estate continuing compensation claim – smoking – ischaemic heart disease – gastric rumination – neurasthenia – failure to diagnose – failure to obtain appropriate clinical management
Safety, Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986
Brew v Repatriation Commission [1999] 30 AAR 63
Comcare v Mooi (1996) 69 FCR 439
Johnston v The Commonwealth [1982] 150 CLR 331
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
26 March 2008 Mr Egon Fice and Dr Roderick McRae, Members 1. Although this application was filed by Daphne Joan MacGregor seeking a widow’s pension, Mrs MacGregor died before this matter came on for hearing before the Tribunal. Ms Susan Adam, the Executrix of the Estate of Mrs MacGregor, applied to the Repatriation Commission (the Commission) to continue the claim on Mrs MacGregor’s behalf. The Commission granted Ms Adam approval to do so, pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the VE Act), on 8 December 2006. The events which have lead to this claim occurred over sixty years ago, during the Second World War and most of the witnesses to the events are deceased.
2. Mrs MacGregor was the widow of Gregor MacGregor who died on 16 January 1970 as a consequence of ischaemic heart disease. Mrs MacGregor claimed that her husband’s death was war-caused and that she was therefore entitled to a service pension.
3. We should mention that there appears to be some confusion in the documents regarding the spelling of the veteran’s name. The veteran’s military service documents all spell his name McGregor. His signature, where it appears on those documents, confirms that spelling. However, the Marriage Certificate in evidence spells his name MacGregor, even though the signature on it is clearly McGregor. Mrs MacGregor appears to have consistently spelled her name MacGregor. Despite this anomaly, we are satisfied, on balance, that the veteran in this case is the same person as that referred to by Mrs MacGregor as her late husband. The signature on the service documents appears identical to that on the Marriage Certificate. Therefore, for the sake of convenience, we have used the name MacGregor when referring to the veteran.
4. On 19 September 2005 the Commission refused Mrs MacGregor’s claim. On 27 June 2006 the Veterans’ Review Board (the VRB) affirmed the Commission’s decision.
5. The only issue before the Tribunal is whether Mr MacGregor’s death was war‑caused within the meaning of s 8 of the VE Act.
RELEVANT BACKGROUND
6. Mr MacGregor was born on 25 June 1923. His mother experienced what was described as nervous ailments. From about six years of age, he sometimes experienced regurgitation of stomach contents.
7. Mr MacGregor enlisted in the Army on 24 December 1941 but was not called up for service until 15 October 1942. He served in the Army until 17 March 1943, when he transferred to the Royal Australian Air Force (RAAF) commencing on 18 March 1943. He served in the RAAF until 22 July 1943, when he was discharged because he was assessed as medically unfit for service. Mr MacGregor did not have operational service and therefore his period of service constitutes eligible war service for the purposes of the VE Act.
8. His service for approximately four months in the Army seems to have been uneventful. He was attached to the 23rd Battalion working at Watsonia as a pay clerk, although he continued to live at home.
9. Mr MacGregor applied to join the RAAF in January 1943 as an aircrew trainee. He was posted to Point Cook where he spent two weeks holding (doing general garden work) before going to Somers to begin aircrew training. After two to three weeks of the aircrew training course at Somers, he began to suffer from a long-standing (childhood) complaint which involved regurgitating his food. This condition became gradually worse and after initially being treated at sick quarters at Somers, he was transferred to 6 RAAF Hospital, Laverton. After many tests at 6 RAAF Hospital, the doctor treating Mr MacGregor determined that his symptoms were functional and that he was unfit for aircrew. On 30 June 1943 Mr MacGregor appeared before a medical board and on 22 July 1943 he was discharged on the ground that he was permanently medically unfit for service.
10. Mr MacGregor subsequently suffered from a number of serious medical conditions including a psychological condition, alcohol addiction and congestive cardiac failure. In late August 1962 Mr MacGregor suffered what appears to be his first coronary artery occlusion (myocardial infarction). It was also said that he was diagnosed with hypertension in 1962.
11. On 15 January 1964, some ten years after they first met, Mr MacGregor married Daphne Joan MacGregor (nee Beard).
12. In the following years Mr MacGregor suffered a series of coronary occlusions and his consequent heart failure then proved increasingly difficult to control. In March 1969 he was admitted to St Vincent’s Hospital with acute pulmonary oedema. Although Mr MacGregor was discharged following this episode, he died from congestive cardiac failure on 16 January 1970. His Death Certificate states that the cause of death was myocardial infarction – hours, and coronary atherosclerosis – years.
LEGISLATIVE SCHEME
13. Section 13 of the VE Act sets out the eligibility of a veteran or, in the case of the death of the veteran, dependants of the veteran, for the pension. Section 13(1)(a) provides that where the death of a veteran was war-caused, the Commonwealth is, subject to the VE Act, liable to pay a pension to the dependants of a veteran in accordance with the VE Act.
14. Section 8 of the VE Act provides that the death of a veteran shall be taken to be war-caused if the death arose out of or was attributable to any eligible war service rendered by the veteran. Eligible war service for the purposes of the VE Act includes rendering continuous full-time service (not being operational service) as a member of the Defence Force during World War 2 (s 7(1)(c)).
15. There is no dispute that Mr MacGregor’s period of military service constituted eligible war service but not operational service. Therefore, the standard of proof which applies in making a determination in Mr MacGregor’s case is that contained in s 120(4) of the VE Act which requires the decision maker to decide the matter to its reasonable satisfaction or, as it is commonly referred to, on the balance of probabilities.
16. Because Mrs MacGregor’s claim was made on or after 1 June 1994, s 120B of the VE Act applies. In applying s 120 (4) of the VE Act to determine a claim, we are required to be reasonably satisfied that Mr MacGregor’s death was war-caused only if the material before us raises a connection between his death and some particular service rendered by him; and there is in force a Statement of Principles (SoP), determined under s 196B(3) or s196B(12), that upholds the contention that the death of Mr MacGregor was, on the balance of probabilities, connected with his service (s 120B(3)). Section 120B(3) does not apply in relation to a claim for the death of a veteran where the Repatriation Medical Authority has neither determined a SoP under s 196B(3) nor declared that it does not propose to make such a SoP in respect of the kind of death met by the veteran.
CAUSE OF DEATH
17. Mr MacGregor’s Death Certificate discloses that the proximate cause of death was myocardial infarction (for a duration of hours) and the long-term cause of death was coronary atherosclerosis (for years). There is a SoP dealing with ischaemic heart disease, the most recent being Instrument No 90 of 2007. For the purpose of that SoP, ischaemic heart disease means a cardiac disability characterised by, amongst other things, insufficient blood flow to the muscle tissue of the heart due to atherosclerosis.
18. In order to uphold the contention that Mr MacGregor’s ischaemic heart disease was, on the balance of probabilities, connected with his eligible war service, we must be satisfied that the SoP concerning ischaemic heart disease upholds the contention that his death from that disease was related to his military service. Paragraph 6 of the SoP sets out factors, at least one of which must be related to the relevant service rendered by Mr MacGregor. Mrs MacGregor relied on Factors 6(h)(i) and 6(h)(ii), which provide:
(h)where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i)smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or …
19. Factor 6(a) of the SoP also refers to the veteran having hypertension before the clinical onset of ischaemic heart disease. However, as we understood Mr Ken Rudge, who appeared on behalf of the Estate of Mrs MacGregor, the applicant did not rely upon this factor. Even if she had, there was no evidence before us that Mr MacGregor was ever diagnosed with hypertension. The only reference to blood pressure in the documents before us was in a letter prepared by Dr L. Murphy dated 6 April 1970. Dr Murphy said in his report that he had examined Mr MacGregor on 9 August 1962 and at the time of examination, his blood pressure was 140/90. That isolated report, with nothing further, does not establish a diagnosis of hypertension. Although Mrs MacGregor provided a report to the Commission dated 21 August 2006, that statement makes no reference to hypertension. In a letter dated 3 April 2006 addressed to the VRB, Mrs MacGregor said that her husband always had a florid complexion and he explained to her that it was due to his high blood pressure. However, there was no medical evidence before us which supports a diagnosis of hypertension. All the medical records from his service period indicate normal readings of 120/80, including what appears to be his final medical examination in conjunction with the Medical Board which found him to be unfit.
20. Although there was ample evidence of Mr MacGregor’s excessive alcohol consumption following his discharge from the RAAF until he died in 1970, that cannot be said to have played any part in his ischaemic heart disease which finally resulted in his death. It is not one of the factors set out in clause 6 of the relevant SoP.
21. Mr Rudge submitted that Mr MacGregor’s smoking was service-related. Mrs MacGregor’s evidence was that when she met her husband he was smoking at least 20 cigarettes per day. In her written statement she also said that Mr MacGregor’s mother was anti-smoking and that she told Mrs MacGregor that her son commenced smoking during his period of service in the Army. That would appear to be correct because Mr MacGregor’s medical examination upon entry to the RAAF states that he was a smoker at that time. In answer to a question on the application for a pension, regarding how Mrs MacGregor believed her husband’s service contributed to his death, Mrs MacGregor referred to his smoking and said that when she first knew him, in the 1950s, Mr MacGregor smoked at least 20 cigarettes a day. She said he smoked more heavily when he was suffering from increased stress or when he was more nervous than usual. The only evidence of a reduction in Mr MacGregor’s smoking was when, after suffering his fifth congestive cardiac failure in February 1969 and upon release from St Vincent’s Hospital approximately a month later, he began to smoke a pipe. He apparently continued to smoke the pipe on a daily basis until his death on 16 January 1970. We are therefore satisfied, and there seems to be no dispute about this, that Mr MacGregor satisfies Factor 6(h)(i) or 6(h)(ii) of the SoP. There remains, however, a question about whether Mr MacGregor’s service was the reason for him taking up smoking.
22. According to Mrs MacGregor, her husband smoked due to the increased stress associated with his service and the psychological problems from which she claimed he suffered, which were also related to his service. Unfortunately, we have no particular evidence of that to which Mrs MacGregor was referring when she said that his smoking was due to increased stress associated with service. The problem is that Mr MacGregor’s service history is very short and, seemingly, uneventful. He completed initial military training at 6 Training Battalion between 23 October 1942 and 14 November 1942, when he was transferred to the 23rd Infantry Training Battalion which was based at Watsonia. He continued in the Army until 3 February 1943 when he took leave without pay. In early 1943 Mr MacGregor applied to join the RAAF and he completed a medical examination for that enlistment on 22 January 1943. He was discharged from the Army on 17 March 1943 and he enlisted in the RAAF as trainee aircrew on the following day. He then spent approximately three weeks at No 1 Recruit Centre, Point Cook. That was apparently a holding posting before commencing aircrew training with No 1 Initial Training School at Somers.
23. The RAAF medical examination report noted that Mr MacGregor’s fitness category was A3B. He was regarded as being unfit in the category A1B due to his height and leg length. In other words, he did not meet the physical standards for a pilot but met the specification for an air-observer or air-gunner.
24. Mr MacGregor had only been at Somers for a few weeks before experiencing a condition which was described as regurgitation of food, or rumination. From his medical records, it appears that Mr MacGregor first reported on sick parade with this condition on 16 May 1943. A RAAF station hospital record indicates that while he was at Point Cook for three weeks, before being transferred to Somers, he had also suffered from a regurgitation problem. He was at Somers for six weeks but there is no evidence that he was under any particular stress or pressure while there. It appears that he was only able to complete about six weeks of a three month course due to his rumination problem. At that time, Mr MacGregor thought the reason for his rumination condition was the food that he was eating and the additional exercise he was required to undertake as part of the course. The medical reports also indicate that he provided a history of nausea and regurgitation of food into his mouth immediately after eating since he was six years old. Medical reports also indicate that he was never actually free of the rumination problem, even when on the lightest of food.
25. Mr Robert Piper, of Military Aviation Research Services, who conducted research into Mr MacGregor’s service with the Army and the RAAF on behalf of the Commission, provided a report regarding the use of tobacco by service personnel during the Second World War. Quite clearly, cigarettes were readily available to service personnel who also received rations of cigarettes while on active service. Mr Piper also noted that smoking was often encouraged by loneliness, boredom, peer acceptance, warmth, comradeship and to demonstrate manliness. However, as Mr Piper notes, the culture of smoking during that period of time was not restricted to the services but also to the general civilian population. It has been frequently accepted by the Tribunal (see Re Cole and Repatriation Commission [2004] AATA 3 at para 34) that the novelty of joining the service; the sometimes physically arduous nature of the initial training; and being confined to barracks in a camp situation has frequently led non-smokers to take up the habit. Also, for those service men and women who saw active service, it was a way of alleviating some of the stress and boredom associated with that activity.
26. However, in this case, there is no evidence of any of those factors playing a part in Mr MacGregor commencing smoking. In fact, the evidence is that throughout the course of his Army service, except perhaps for the three week initial training course, he lived at home where, according to the evidence, his mother did not condone smoking. Also, the nature of Mr MacGregor’s work was that of a pay clerk and it is difficult to distinguish the nature of that work from similar work conducted in civilian life. Yet, by the time that he was discharged from the Army, he considered himself to be a smoker as is evidenced by his enlistment medical conducted by the RAAF. It is therefore not possible on the evidence before us to be satisfied on the balance of probability that Mr MacGregor’s smoking habit had some causal relationship to his Army service. While smoking most certainly is a factor which could be related to Mr MacGregor’s ischaemic heart disease, there is simply no evidence that Mr MacGregor’s commencing smoking was in any way related to his service. We are therefore unable to find, on the balance of probability, that Mr MacGregor’s death from ischaemic heart disease is connected to the circumstances of his service by reason of his smoking habit.
INABILITY TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT – PSYCHIATRIC CONDITION
27. Mr Rudge submitted, in the alternative, that Mr MacGregor suffered from a psychiatric condition before and during his period of service, the precise nature of which was never diagnosed. Mr Rudge contended that the psychiatric condition was aggravated because during his period of service and in particular his service with the RAAF, he did not receive appropriate clinical management of his condition. Mr Rudge submitted that the failure to obtain appropriate treatment contributed to and aggravated Mr MacGregor’s existing psychiatric condition which was known to exist at the time of him joining both the Army and the RAAF. As we understand the argument, the failure to treat his psychiatric condition caused him to increase his level of cigarette smoking and alcohol consumption. Given that cigarette smoking is one of the factors relied on in the SOP for ischaemic heart disease, Mr Rudge submitted that the failure to diagnose and properly treat Mr MacGregor’s psychiatric condition aggravated that condition, causing him to increase his level of cigarette smoking, thereby creating the connection between the circumstances of Mr MacGregor’s death and his relevant service.
28. In answer to a question on his enlistment medical history sheet regarding whether he had ever suffered from neurasthenia or nervous breakdown, Mr MacGregor appears to have changed a no answer to yes. This is because the neurasthenia is noted further in his medical history sheet dated 24 December 1941 as being a slight defect but not sufficient to cause him to be rejected. Despite this, in answer to a questionnaire regarding his medical history upon application for entry to the RAAF, when asked if he had suffered nervous trouble or a nervous breakdown, Mr MacGregor answered no. He also answered no to a question asking whether he had suffered any other illness or injury. As for his family’s medical history, he recorded that his mother suffered from nervous ailments.
29. When Mr MacGregor joined the RAAF, he again began to experience rumination. His RAAF medical records indicate that this condition was constantly present but in civilian life, the food which was regurgitated was generally in relatively small amounts and could be swallowed again. He believed this was aggravated when he commenced his aircrew training at 1 ITS. He felt nauseated and although sometimes he swallowed the regurgitated food, he also vomited. After commencing aircrew training, his medical reports state that he became worse and there was frequent vomiting; he felt languid and he could not keep up with the general duties and activities of an aircrew trainee. In a report prepared by Wing Commander McLean on 1 June 1943, it is stated that Mr MacGregor was never actually free of the regurgitation problem, even when he was only consuming light food. It was also reported that he had always lacked energy and had never taken part in strenuous games as it aggravated his stomach troubles. He was admitted to 6 RAAF Hospital on 26 May 1943 for investigation and assessment of his fitness to continue with aircrew training. Wing Commander McLean, who prepared a number of reports following extensive investigations, concluded that Mr MacGregor’s condition was a functional one and that he was permanently unfit for aircrew training. He was then referred to a psychiatrist, Squadron Leader S. Forgan, who also confirmed that Mr MacGregor’s symptoms were functional. Squadron Leader Forgan also noted that Mr MacGregor was unfit for aircrew but that he might be able to carry on in ground staff. However, he also indicated that this was doubtful on account of the history Mr MacGregor gave him of personal and family nervous instability.
30. We are aware that the application of medical terminology may alter over time, as may its definition. Neurasthenia literally translates from the Greek as nerve debility. Neurasthenia is defined in Dorland’s Illustrated, 27th Edition Medical Dictionary, 1988, (Dorland’s) as:
A term introduced by Beard in 1869 to refer to a syndrome of chronic mental and physical weakness and fatigue, which was supposed to be caused by exhaustion of the nervous system. Called also Beard’s disease, neurasthenic neurosis and nervous exhaustion or prostration.
Neurasthenia is defined in Dorland’s Illustrated, 25th Edition Medical Dictionary, 1974, as:
A neurosis marked by chronic abnormal fatigability (sometimes exhaustion), lack of energy, feelings of inadequacy, moderate depression, inability to concentrate, loss of appetite, insomnia, etc.
31. An internet search regarding neurasthenia also reveals that the term is no longer in scientific use. It is also been referred to as Americanitis because Americans were supposed to be particularly prone to neurasthenia. It also appears that the modern view is that the main problem with the neurasthenia diagnostic label is that it attempted to group together a wide variety of cases, many of which were inexplicable with the diagnostic technology of the mid-twentieth century. While the description could include some psychiatric conditions, many physiological conditions now better understood by the medical community were also included.
32. Nervousness in defined in Dorland’s as:
Excessive excitability and irritability, with mental and physical unrest.
Rumination is defined by Dorland’s as:
The regurgitation of food after almost every meal, part of it being vomited and the rest swallowed: a condition seen in infants.
The Merck Manual of Diagnosis and Therapy, 18th Edition, 2006 (Merck Manual) also notes that rumination is commonly observed in infants. The Merck Manual suggests that the pathophysiology of rumination is poorly understood. It suggests that the disorder is probably a learned maladaptive habit and may be part of an eating disorder.
33. The evidence clearly points to the fact that Mr MacGregor’s rumination problem was functional. The term functional has itself had an alteration of meaning. Functional is defined in Dorland’s Illustrated, 25th Edition Medical Dictionary, as:
Of or pertaining to a function; affecting the functions, but not the structure; said of disturbances of function with no organic cause
34. We understand the use of the term functional to mean Mr MacGregor’s condition was a physiological problem rather than a psychological one. Furthermore, as the pathophysiology of adult rumination was poorly understood even in 2006, there is no evidence that in 1943, the medical treatment and tests conducted on Mr MacGregor at 6 RAAF Hospital were inappropriate. Nor is there any evidence that Mr MacGregor was unable to obtain clinical management of that condition.
35. The meaning of inability to obtain clinical management was comprehensively analysed by the Full Court of the Federal Court in Brew v Repatriation Commission [1999] 30 AAR 63. The court there was dealing with the factor in a SOP concerning varicose veins which provided that the connection between that disease and service could be established by inability to obtain appropriate clinical management for varicose veins. The Full Court agreed that inability, in that context, could mean what could be described as objective barriers, such as lack of power, capacity or means; or a subjective barrier such as condition of being unable (page 70). Therefore, in addition to there being a physical barrier to obtaining appropriate clinical management for a disease, if a person was threatened with sanctions if they sought appropriate treatment, that could fall within the inability clause in the SOP (pages 70-71). However, the medical evidence before us discloses neither a physical barrier to Mr MacGregor obtaining appropriate clinical treatment for his rumination problem nor any threat of sanction should he have sought such treatment. In fact, he freely reported his condition when at Somers and was admitted to hospital where numerous tests were conducted and attempts made to resolve the problem without apparent success. Therefore, in our view, it cannot be said that there was an inability to obtain appropriate clinical management for his rumination problem.
36. There is also evidence that Mr MacGregor suffered from a nervous complaint. The medical records indicate that his mother suffered from bad nerves and that he was described as a nervous type. The question which arises is whether the nervous condition so described was in fact was a disease for the purposes of the VE Act.
37. A disease, insofar as it is relevant, is defined in s 5D of the VE Act as:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
38. The definition of disease in the VE Act is similar to the definition of ailment in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), where it is defined to mean any physical or mental ailment, disorder, defect or morbid condition (whether or sudden or gradual development).
39. Given the similarities between the definition of disease in the VE Act and the definition of ailment in the SRC Act, it is instructive to note what Drummond J said in Comcare v Mooi (1996) 69 FCR 439 at 443 when dealing with a mental ailment. He said:
It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
40. It therefore seems to follow that if Mr MacGregor’s nervous condition could be considered to be outside the boundaries of normal mental function and behaviour, his condition could properly be referred to as a mental ailment, disorder, defect or morbid condition. If that were the case, then Mr MacGregor’s condition would fit the definition of disease in s 5D of the VE Act.
41. The evidence regarding Mr MacGregor’s nervous condition is limited. So too is the evidence regarding any connection between Mr MacGregor’s nervous condition and the problem he experienced regurgitating food. There is a statement in the report prepared by the Medical Board on 3 July 1943 indicating that various physicians who had examined Mr MacGregor in the previous 13 years attributed his rumination to a nervous disorder of the stomach. However, the psychiatrist who examined Mr MacGregor in June 1943, Squadron Leader Forgan, was of the opinion that his rumination symptoms were functional. The Medical Board was also of the view that Mr MacGregor’s condition had not been contributed to in any material degree by the conditions of his service nor had his condition been aggravated by the conditions of his service.
42. However, Mr Rudge submitted that the failure to treat Mr MacGregor’s nervous condition caused a worsening of that condition; which, in effect, resulted in a contribution to the aggravation of his condition. Mr Rudge referred to a decision of the High Court in Johnston v The Commonwealth [1982] 150 CLR 331. In that case, a Vietnam veteran, while serving in South Vietnam, attended the military hospital at Vung Tau complaining of pain in the region of the bowel. He was diagnosed as suffering from haemorrhoids and was supplied with cream and suppositories. He did not seek further medical advice. However, in 1974, some years after his service in Vietnam, he was examined by doctors who found him from suffering from cancer of the bowel. The High Court said that the evidence in that case was that if the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down if not entirely stopping the disease. In other words the disease, (bowel cancer) was capable of effective medical management. The Court therefore held that:
… it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken.
Accordingly, the Court found that the failure to diagnose the presence of bowel cancer in Mr Johnston in 1970 was incurred in the course of his employment and was directly related to it. It therefore held that the employment was a contributing factor to the aggravation of the disease [p341].
43. In our opinion, there is a problem in applying Johnston’s case in this matter. In Johnston’s case there was a failure to diagnose the disease. That is not the position as far as Mr MacGregor is concerned. His medical problems at the time he was enlisted in both the Army and RAAF had been diagnosed correctly. When he reported the problem during his training at 1 ITS, he was hospitalised and numerous tests were conducted to establish the cause of his rumination. The nervous condition from which he suffered since he was a child had been documented and the medical officers who treated him were aware of it. There was no evidence of a distinct psychiatric diagnosis per se. While it is true that he was not treated for his nervous condition, it is not clear to us what treatment could have been provided in 1943 for that condition. He was seen by a psychiatrist but it appears that no treatment was recommended for his nervous complaint.
44. In fact, the Merck Manual indicates the difficulties that are associated with Mr MacGregor’s medical conditions. While it is accepted that in some patients psychological conditions such as anxiety, depression or hypochondriasis are associated with rumination, the only treatment suggested is supportive. The Merck Manual suggests that currently drug therapy generally does not help but that motivated patients may respond to behavioural techniques such as relaxation or biofeedback. It is also suggested that psychiatric consultation may be helpful. It is, in our view, unlikely that in 1943 the accepted medical treatment for Mr MacGregor’s nervous or rumination conditions would have been any further advanced than they are at present. We are, therefore, of the opinion that the clinical management of Mr MacGregor’s disease when he was serving with the RAAF was appropriate for that time.
45. In any event, even if we are wrong about whether Mr MacGregor received appropriate clinical management for his rumination and nervous complaints, we would need to have evidence that, on the balance of probability, disclosed a direct link between those conditions and an increase in his smoking. There is no such evidence. Mrs MacGregor’s evidence was that when she first met him he was smoking at least 20 cigarettes per day. She was also told by Mr MacGregor’s mother that when he was discharged from the RAAF he was smoking approximately 20 cigarettes per day. Furthermore, Mr MacGregor said that he was a smoker when he joined the RAAF. Therefore, there is no evidence before us to connect any increased level of smoking by Mr MacGregor with his RAAF service. It follows that there is no link between that service and his death.
46. Mr Rudge also submitted that the Tribunal should apply s 119(1)(h) of the VE Act to Mr MacGregor’s circumstances. In essence, that section requires the Commission (in this case the Tribunal) to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time and the unavailability of witnesses. However, s 119 of the VE Act cannot be resorted to where there is no material which points to the connection between a veteran’s disease and his death. As the Full Court of the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373:
The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g).
This is a case where there is no material pointing to the fact that the problems Mr MacGregor suffered due to rumination and his nervous complaint while at Somers caused any change whatsoever in his already established smoking habit.
CONCLUSION
47. Mr MacGregor’s death was caused by ischaemic heart disease. Although much was made of his alcohol consumption after leaving the RAAF, the consumption of alcohol is not a relevant factor in the SoP dealing with that disease. On the other hand, smoking is. However, there is no evidence which links Mr MacGregor’s smoking with his brief period of service in the Army and the RAAF. There is also no evidence that Mr MacGregor’s smoking increased as a result of his nervous complaint or rumination problems. We are therefore unable to find any link between Mr MacGregor’s death from ischaemic heart disease and the circumstances of his service with the Army or the RAAF.
48. Accordingly, we are of the view that the decision of the Commission made on 19 September 2005 refusing Mrs MacGregor’s claim for a pension because of the death of her husband was correct. The decision must be affirmed.
I certify that the forty-eight (48) preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice and Dr Roderick McRae, Members
Signed: ............... [Sgd Sanjiv Shah] ........................
AssociateDates of Hearing 28 September 2007 & 14 December 2007
Date of Decision 26 March 2008Solicitor for the Applicant Mr K. Rudge, Williams Winter
Advocate for the Respondent Mr R. Douglass, Department of Veterans' Affairs
MacGregor and Repatriation Commission [2008] AATA 230
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