MARIE DYKE and REPATRIATION COMMISSION
[2013] AATA 472
[2013] AATA 472
Division VETERANS' APPEALS DIVISION File Number
2011/3709
Re
MARIE DYKE
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 8 July 2013 Place Brisbane The Tribunal affirms the decision under review.
[Sgd]
Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Widows’ pension – War service – Type of death of the veteran – Hypotheses connecting death with service – Statements of Principle – Deledio steps – Standard of proof – Death not connected to service – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14, 120, 120A
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Fogarty v Repatriation Commission [2003] FCAFC 136
Kaluza v Repatriation Commission [2010] FCA 1244
Leesv Repatriation Commission (2002) 125 FCR 331
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles: Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008
Statement of Principles: Instrument No. 21 of 2006 as amended by Instrument No. 63 of 2006 and Instrument No. 61 of 2010
Statement of Principles: Instrument No. 51 of 2006 as amended by Instrument No. 123 of 2011
Statement of Principles: Instrument No. 5 of 2008
Statement of Principles: Instrument No. 27 of 2008
Statement of Principles: Instrument No. 68 of 2009
Statement of Principles: Instrument No. 37 of 2012; Instrument No. 9 of 2003; Instrument No. 29 of 2003
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
BACKGROUND
Mr John Dyke (“the veteran”) served in the Royal Australian Air Force (RAAF) and died on 12 July 2006, aged 81 years. The applicant in this matter, Mrs Marie Dyke, is his widow and dependant in accordance with the definitions of those terms in ss 5E and 11 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
On 4 March 2009, the applicant lodged a claim under s 14 of the Act for a war widow’s pension, claiming that the veteran’s death was war-caused in accordance with s 8 of the Act. On 24 March 2009, the Repatriation Commission (“the respondent”) rejected the claim as did the Veterans’ Review Board on 28 June 2011. On 7 September 2011, the applicant lodged an application with this Tribunal for a review of that decision.
SERVICE
The veteran served with the RAAF during World War II from 4 June 1943 to 14 September 1945 and rendered “eligible war service” in the form of “operational service” in accordance with ss 7 and 6A of the Act during that entire period.
CAUSATION
If the death of the veteran is to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevantly, in this matter is s 8(1)(b) of the Act states:
(1) Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Where operational service has been rendered, the standard of proof applicable to any decision is set out in s 120(1) of the Act, which, relevantly, states:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect … of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that … the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Furthermore, s 120(1) is also affected by the provisions in ss 120(3) and 120A(3) of the Act. They state:
120 Standard of proof
…
(3) In applying subsection (1) or (2) … in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(c) that the death was war-caused or defence-caused;
… if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) For the purposes of subsection 120(3), a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
ISSUE
The issue for the Tribunal to determine is whether the veteran’s death “arose out of, or was attributable to, any eligible war service rendered by [him]”.
SUBMISSIONS
Applicant’s case
Counsel for the applicant, Mr Harding, submitted that a number of medical and psychiatric conditions comprised the formulated hypotheses, most of which satisfy Statements of Principle (SOP) issued by the Repatriation Medical Authority.
The hypotheses submitted on behalf the applicant, the widow of the deceased veteran, are:
(1)The veteran suffered posttraumatic stress disorder (PTSD) as a result of his operational service in the RAAF in World War II;
(2)The veteran suffered a depressive disorder, specifically, chronic dysthymia. This is said to be a consequence of his PTSD outlined in hypothesis 1. In addition or in the alternative, it is said that the depressive disorder is related to gastrointestinal conditions;
(3)The veteran suffered from panic disorder as a result of his operational service. In addition or in the alternative, the veteran suffered PTSD at the time of the clinical onset of panic disorder and/or suffered a number of gastrointestinal conditions; and
(4)The veteran suffered cerebrovascular accidents from having a hypertensive episode. In addition or in the alternative, the veteran suffered a panic attack and/or a panic disorder and/or a depressive disorder at the time of or preceding the date of onset of cerebrovascular accident in March 2004. The cerebrovascular accident was also contributed to by vascular dementia (Instrument No. 21 of 2006; Instrument No. 63 of 2006; and Instrument No. 61 of 2010); and carotid arterial disease (Instrument No. 37 of 2012; Instrument No. 9 of 2003; Instrument No. 29 of 2003).
Respondent’s case
The respondent’s advocate, Mr Kelly, submitted that for the applicant’s case to succeed, the following conditions (with the relevant SOP indicated), or at least one of these conditions, must be satisfied:
(1)Posttraumatic stress disorder (PTSD) – (Instrument No. 5 of 2008; and Instrument No. 27 of 2008);
(2)Depressive disorder (Instrument No. 27 of 2008);
(3)Panic disorder (Instrument No. 68 of 2009);
(4)Cerebrovascular accident (Instrument No. 51 of 2006 as amended by Instrument No. 123 of 2011);
(5)Vascular dementia (Instrument No. 21 of 2006 as amended by Instrument No. 63 of 2006 and Instrument No. 61 of 2010);
(6)Carotid arterial disease (Instrument No. 37 of 2012; Instrument No. 9 of 2003; and Instrument No. 29 of 2003); and
(7)Hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008).
The respondent argued that there is evidence of ischaemic events or some vascular dementia in the six month period prior to the cerebrovascular accident on 25 March 2004, but that a hypothesis of hypertension or panic disorder is not raised. In respect of the hypothesis of PTSD, the respondent points to the posthumous diagnosis of PTSD by Dr Phillipson but he could not find sufficient evidence to substantiate panic disorder. The respondent also rejects any causal link between carotid arterial disease, vascular dementia or PTSD and the “type of death” suffered by the veteran.
EVIDENCE
Service
Department of Defence records indicate that the veteran served from 7 April 1944 to 19 June 1945 as an “Air Gunner”, based in the United Kingdom.[1] A report completed by Dr Albert Palazzo, consultant historian, dated 17 December 2011,[2] records that the veteran was attached to the Royal Air Force 101 Squadron at Bomber Command and flew in 29 operational missions in a Lancaster Heavy Bomber over the European continent. Dr Palazzo states that while the personal records of the veteran are unavailable as they are located in the United Kingdom, “flying with Bomber Command” was a “hazardous business” and “over 4,000” Australian airmen lost their lives while serving there. Dr Palazzo also describes the role of the air gunner in his report. He states that their job was to man the turret guns and protect the bombers from very sudden attacks by German fighter planes.
[1] Exhibit 1, T-documents, p. 12.
[2] Exhibit 3.
The applicant
The applicant wrote letters to a pensions advocate on 16 November 2008 and to the respondent on 15 June 2009. In both of those letters she states that the veteran suffered from “severe nightmares” throughout his life and that he suffered nerve problems which led to ulcers. In the letter to the respondent, she stated that the veteran’s mother worried about how she would “cope” with him after he had returned from service.
Dr T. P. Clarke
In evidence were the veteran’s medical records from 14 April 1999 to 8 July 2006, provided by his general practitioner, Dr T. P. Clarke.[3] Among other things, they record his blood pressure during that period as:
[3] Exhibit 2.
Date
Blood Pressure
28 December 2000
120/60
25 January 2001
120/65
30 April 2001
130/70
10 April 2003
125/80
1 August 2003
130/70
25 March 2004
130/80
28 April 2004
125/70
4 June 2004
160/90
9 November 2004
120/70
6 May 2005
130/70
16 May 2005
115/70
13 December 2005
110/75
15 December 2005
110/70
2 February 2006
110/65
8 July 2006
179/98 normalising to 130/80
On 16 May 2005, Dr Clarke notes in the medical record that he is going to “trial” the veteran on “Minipress” but it is to be done “carefully in view of BP”. On 1 July 2005, Dr Clarke notes in the record that the veteran has “obstructive uropathy” and that there has been “minimal progress with Minipress, change to Flomax”.
On 24 February 2005, Dr Clarke completed a “Diagnostic Report – Cerebrovascular Accident”, in regards to a right occipital lobe haemorrhage that the veteran suffered on 25 March 2004.[4] In that report Dr Clarke states that the veteran’s condition included both intracerebral haemorrhage and cerebral ischaemia. He also stated that there was “underlying cerebral artherosclerosis”. In the report Dr Clarke suggests that the “clinical onset” of the condition was “6 months prior” as there was evidence suggesting “small ischaemic events” at that time.
[4] Exhibit 6, pp. “20-21”; Note that this exhibit includes material that was inadvertently omitted from the T-documents.
On 24 March 2005, Dr Clarke completed a “Medical Report – Aspirin Cerebrovascular Accident” in regard to the intracerebral haemorrhage that the veteran suffered on 25 March 2004.[5] In that report he states that the veteran had been placed on 150mg of aspirin once daily for his cerebral atherosclerosis with cerebral ischaemia. In this report Dr Clarke nominates 25 March 2004 as the date of “clinical onset” of the condition.
[5] Exhibit 6, p. 26.
Dr Maura Fagan
Dr Fagan, consultant physician at St Vincent’s Hospital, made an “Admission Note” dated 8 July 2006, the day the veteran was transferred there from Chinchilla Hospital after suffering what was believed to be cerebral haemorrhage.[6] She notes that the medical staff at Chinchilla Hospital had recorded “transient hypertension with BP 179/98 … compared to a baseline 110/65-70” after noticing that the veteran was “unresponsive with new right sided hemiplegia” (see also referral letter attached). After examining the veteran and having a CT scan performed, she assessed him as suffering a “large left parietal intraparenchymal haemorrhage” (i.e. cerebrovascular accident).
[6] Exhibit 5.
Dr Ross Phillipson
Dr Ross Phillipson, consultant psychiatrist, provided a report, dated 22 March 2011,[7] where he made a posthumous diagnosis that the veteran was “on the balance of probabilities” suffering from posttraumatic stress disorder (“PTSD”) which was “immediately apparent upon his return from the war” but remained untreated.
[7] Exhibit 1, T-documents, pp. 48-51.
Dr Phillipson made the diagnosis based upon a consultation with the applicant. During the consultation the applicant told Dr Phillipson that from the earliest days of their marriage, which was five years after the veteran returned from the war, the veteran was “‘moody, irritable, argumentative’” and that on most nights he would have nightmares and would shout out in his sleep. The applicant told Dr Phillipson that the veteran would never tell her what he was dreaming about.
The applicant told Dr Phillipson that the veteran attended ANZAC Day celebrations “‘but largely he refused to talk about his war experiences’”. However, she said that on one occasion the veteran did tell her of “‘having to hose out a mate’s remains from the gun turret’”.
The applicant described the veteran to Dr Phillipson as being a “‘sad man’” who was “‘uptight most of the time and couldn’t relax’”. She told Dr Phillipson that prior to their marriage the veteran’s mother had said to her that “‘he has nightmares every night since coming home from the war … I don’t know how you will be able to manage him’”.
Dr Phillipson stated in his report that it was unlikely that the veteran had any psychiatric condition prior to the war as he had never received any psychiatric treatment. He also noted that the applicant was uncertain as to whether the veteran was prescribed any medication for a psychiatric condition or high blood pressure. However, she was “quite certain” that the veteran had never received any psychiatric or psychological treatment during their marriage.
Dr Phillipson concluded that “on the history” the veteran’s PTSD was a result of exposure “to several category 1A stressors” during his war service. He stated that on the evidence provided by the applicant the veteran avoided discussing his war-time experiences, had difficulty sleeping, had restricted affect, was socially withdrawn and was irritable and prone to outbursts of anger.
Dr Phillipson also stated that the applicant told him that the veteran suffered episodes of sweating, nausea and abdominal distress, and described “odd sensations consistent with paraesthesia” and a fear that he was “losing control”. Dr Phillipson concluded that while these were symptomatic of panic attacks, “there is insufficient evidence to indicate the presence of a panic disorder as such”.
Dr Phillipson reviewed a report of the veteran’s general practitioner and notes that it did “not indicate a history of hypertension at the time of the clinical onset of the cerebro-vascular accident”. However, Dr Phillipson nevertheless opines that the effects of anxiety related to his PTSD “may have [caused] an acute hypertensive episode immediately prior to the stroke which caused his death” (my emphasis added).
Dr Colin Brennan
Dr Colin Brennan, senior consultant psychiatrist, provided a report dated 20 July 2012.[8] Dr Brennan’s report contains an extensive recital of the war-time history of the veteran and his squadron and the duties of an air gunner as provided by Dr Palazzo. Dr Brennan states that he reviewed “multiple medical and hospital records and reports” in providing his report. Included in these were, relevantly, the following records in reports which Dr Brennan says he reviewed:
1. Dr C Halliday, gastroenterologist
[8] Exhibit 4.
· On 10 September 1992 the veteran’s blood pressure was 140/80; and
· On 26 April 2001 the veteran’s blood pressure was 130/80.
2. Dr R Nagel, gastroenterologist
· On 1 August 2000, Dr Nagel stated: “I wonder if he might be depressed”.
· On 10 October 2000, Dr Nagel records:
he seemed depressed when I first saw him and wondered if this was related to his retirement from the land. I started him on Prothiadin 25mg nocte. Today he seems happier to me. He vigorously denies any change in his mood but is quite happy to continue his medication.
Dr Nagel’s report dated 1 August 2000 was also in evidence.[9] While Dr Brennan does not refer to the veteran’s blood pressure recorded in Dr Nagel’s report, it was recorded by her as being 130/90. Also, in regards to her concern as to whether he may “be depressed”, she wonders if it due to drought on his land and that it may be significant that the veteran’s own father died at only a year older than he was at that time.
[9] Exhibit 9.
The veteran had been referred to both of the above specialists as well as an urologist for stomach complaints. These specialists cumulatively identified a previous peptic ulcer, irritable bowel syndrome and diverticular disease. Dr Brennan concluded that all of these clinical features were “physical manifestations of chronic PTSD”.[10]
[10] Exhibit 4, pp. 24-28 and pp. 60-61.
Dr Brennan also reviewed the report by Dr Phillipson.[11] In his opinion many of the behaviours described by the applicant in that report, such as nightmares, being unwilling to talk about his war-time experiences and being difficult to manage are indicative of PTSD. He especially identifies as a “significant Criterion A stressor” the incident the veteran described to the applicant of “having to hose out a mate’s remains from the gun turret”. Dr Brennan also states that descriptions of the veteran as being a “sad man” was indicative of “chronic dysthymia/depression” and that his stomach conditions and being pale and sweaty after using the toilet were “consistent with various anxiety conditions [and] episodes of panic”.
[11] Exhibit 4, pp. 19-23.
Dr Brennan noted that Dr Phillipson had opined that “there was insufficient historical evidence to indicate the presence of a panic disorder as such”. However, Dr Brennan states that because the history provided was only second-hand and that it was lacking due to the veteran’s irritability and unwillingness to talk about his wartime experiences, then, as such, “panic disorder is very probably a correct diagnosis”.
Dr Brennan also reviewed other medical history provided for the veteran. He refers to a report by Dr G Tucker dated 21 April 2004 where he states, after the veteran’s stroke in 2004, “that it would thus seem to be a hypertensive stroke though I understand he had not been known to be hypertensive in the past”. From the veteran’s “Complete Record” provided by Dr Clarke, Dr Brennan identifies Lexapro, an antidepressant, as one of the “current medications” for the veteran.
Dr Brennan also refers to the various reports provided in regards to the veteran’s condition by medical practitioners at Chinchilla and St Vincent’s hospital on 8 July 2006. He especially notes the reported “transient hypertension” and the blood pressure reading of 179/98.
Dr Brennan refers to Dr Phillipson’s opinion that the veteran suffered a cerebral haemorrhage that was a result of an acute hypertensive episode which was related to high levels of anxiety. Dr Brennan also states that subsequent to the Veterans’ Review Board decision, “detailed medical records” have been provided which “clearly state significant hypertension recorded on a number of occasions over some years prior to his eventual death”.[12] With this in mind Dr Brennan states that he “strongly endorses this opinion” of Dr Phillipson.
[12] Exhibit 4, pp. 53-54.
Dr Brennan concluded that the veteran’s service as an air gunner caused him to encounter, like all of those who served at Bomber Command, “multiple, intense, massively traumatic psychological (and physical) stressors”, such as Criterion 1(a) and (b). He states that this led the veteran to develop PTSD “with multiple subsequent physical and psychological complicating disorders including cerebral atherosclerosis, intermittent hypertension, panic attacks leading to panic disorder, and chronic dysthymia.[13]
[13] Exhibit 4, p. 62.
Dr Ringrose
Dr Edward Ringrose, consultant physician, provided a report dated 28 November 2012.[14] In compiling his report, Dr Ringrose referred to the veteran’s medical records by his general practitioner Dr T Clarke, the clinical notes from Chinchilla and St Vincent’s Hospital and the report of Dr Phillipson.
[14] Exhibit
Dr Ringrose reports, and reproduces from the medical records, numerous blood pressure readings for the veteran in the years prior to his death, dating back to 1992.[15] He concludes that “it appears clear” that the veteran “did not ever suffer from significant hypertension”, does not appear to have ever been prescribed anti-hypertension medication and that, indeed, the veteran’s blood pressure readings from age 60-80 years were quite low for someone of his age and would be expected to be seen in a person aged 20-30 years. He opines that if the veteran had been suffering from PTSD or depressive disorder, then it could be expected that his blood pressure readings would have been, at times, elevated.
[15] Most of these are also included in the Table at para 14 above.
Dr Ringrose notes that the veteran’s blood pressure was not taken immediately before the stroke but that it was elevated to 179/98 after the stroke. However, he also notes that it had fallen a few hours later to 120-130/80. Dr Ringrose states that Dr Phillipson assumed that the veteran’s blood pressure was high prior to his stroke and that the elevated reading was brought on by an acute stress reaction. Dr Ringrose opines that, while it cannot be determined definitively either way, given the veteran’s blood pressure readings over a number of years, this “is not particularly likely” and that the one elevated blood pressure reading taken after his stroke “may well have been a response to a rise in intracranial pressure at the time of the stroke”.
CONSIDERATION
To determine whether the veteran’s death “arose out of or was attributable to any eligible war service rendered by him”, it is first necessary to determine a number of fundamental issues. These are:
(1)That the deceased person was a veteran and that he had served on “operational service”; and
(2)That the veteran had died; and
(3)That the applicant was the deceased veterans widow.
These issues are not in dispute and there is some evidence before the Tribunal to be satisfied that each of these is satisfied. I therefore accept these as findings of fact.
A further fundamental issue is the question of what is the “kind of death” suffered by the veteran. This is to be determined on the balance of probabilities (see s 120(4) of the Act and Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]). There is sufficient evidence to establish that the “kind of death” in this case is a cerebrovascular accident. The etiology of some of the conditions said to underpin death by cerebrovascular accident is subject to hypothesis or conjecture that must be viewed in light of the expert evidence, some of which is posthumously determined and some of which is counterbalanced by other “conflicting” expert evidence.
The procedure, or steps, for determining whether or not a particular condition which caused death “arose out of, or was attributable to, any eligible war service that the veteran rendered” was set out by the Federal Court in Repatriation Commission v Deledio (Deledio):[16]
(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.
[16] (1998) 83 FCR 82 at 82 – 83.
Step 1:- Hypotheses
The first Deledio step requires that there be material which points to a hypothesis which connects the condition that caused the veteran’s death with his war service. I accept that the applicant has raised the following hypotheses connecting the veteran’s death with his service:
(1)The veteran suffered panic disorder as a result of his service which caused his death from cerebrovascular accident;
(2)The veteran suffered depressive disorder as a result of his service which caused his death from cerebrovascular accident;
(3)The veteran suffered a clinically significant anxiety and/or depressive disorder as a result of his service which caused hypertension which caused his death from cerebrovascular accident.
Step 2:- Statement of Principles
The second Deledio step requires that there be in force a Statement of Principles for cerebrovascular accident. This is Instrument No. 51 of 2006.[17]
[17] As amended by Instrument No 123 of 2011 in a manner not material to this matter.
In accordance with cl 5 of the Statement of Principles, the factor identified must be related to the relevant service rendered by the veteran.
Step 3:- Reasonableness of the Hypothesis
The third Deledio step requires consideration of whether the hypotheses raised are reasonable for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[18] The requirement will be met if a hypothesis fits, that is it is consistent with the template provided by either one or more of the factors listed in the statement of principles that must exist as a minimum to connect the condition to the veteran’s war service.
[18] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415 per Mason CJ, Deane and McHugh JJ.
In respect of the factors which must exist under SOP No. 51 of 2006 (Cerebrovascular Accident), the following are relevant:
6. The factor that 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 is:
(a) having hypertension at the time of the clinical onset of cerebrovascular accident; or
…
(d) having panic disorder at the time of the clinical onset of cerebrovascular accident; or
(e) having depressive disorder within the 90 days before the clinical onset of cerebrovascular accident; or
…
(o) for cerebral ischaemia only,
…
(v) having dyslipidaemia before the clinical onset of cerebrovascular accident; or
(p) for intracerebral haemorrhage only,
…
(x) having an acute hypertensive episode at the time of the clinical onset of cerebrovascular accident; or
In a similar way, Factor 6(a) and (b) of the SOP for Carotid Arterial Disease (Instrument No. 37 of 2012) and Factors 6(a), (b) and (d) of the SOP for Vascular Dementia (Instrument No. 21 of 2006) have also been considered.
There is a report by Dr Palazzo that the veteran’s unit in World War II flew a number of sorties over Europe and was exposed to a number of highly dangerous situations in the 15 months in which he served there in the RAAF. There is therefore some basis that the veteran might reasonably expected to have suffered from PTSD.
In relation to the medical scenarios relevant to hypertension and stroke or depressive disorder, there is little in the way of information prior to the veteran’s death which would suggest that there was any psychiatric condition or that he suffered from hypertension prior to his RAAF service. However, there is evidence provided by the applicant to the effect that the deceased veteran’s mother had indicated to her that the veteran was different after he returned from World War II in the sense that he was much more reserved that before he undertook operational service. The applicant also says that the veteran was a quiet man who continued to be a farmer all his working life until he retired and that he only once mentioned, during their married life, his war time experience; that was of having to hose out the remains of a deceased person from an aircraft turret.
There is a clear and unequivocal version of medical events which shows the veteran suffered from a cerebrovascular accident in 2004 and that there was a cerebral haemorrhage. That the veteran suffered subsequent disorientation and dementia is uncontroversial. The hypotheses as to death by cerebrovascular accident as contained in SOPs No. 51 of 2006, No. 21 of 2006 and No. 37 of 2012 are therefore sustained as the applicant’s description is consistent with the template.
In respect of the hypothesis related to the onset of cerebrovascular accident and it having an etiology in psychiatric conditions, the description of the veteran’s personality seems relatively consistent with someone having dysthymia. The hypothesis as to the origin of the cerebrovascular accidents due to a depressive disorder is therefore reasonable when taking account of the factors in SOP No. 27 of 2008. In respect of the history of the squadron in which the veteran served, a hypothesis that PTSD was present in the veteran and which arose due to his war service could also therefore be said to be reasonable when taking account of the factors in SOP No. 5 of 2008. As to the hypothesis that the veteran suffered panic disorder, the story depicted in relation to that condition seems more equivocal but there is at least one medical opinion which points to the veteran having had that condition. Such a hypothesis based on SOP No. 68 of 2009 is therefore reasonable.
For the purposes of Step 3 of the Deledio taxonomy, I therefore find that the hypotheses proposed are consistent with their relevant templates which could connect the proposed conditions with the veteran’s war service.
Clinical Onset
Each of the factors in the Statements of Principle requires consideration of the concept of “clinical onset” in the context of the veteran’s cerebrovascular accident. In Kaluza v Repatriation Commission (Kaluza),[19] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission[20] in the following way:[21]
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[19] [2010] FCA 1244.
[20] (2002) 125 FCR 331.
[21] [2010] FCA 1244 at [92]-[93].
The veteran’s general practitioner, Dr Clarke, on one form nominates 24 March 2004 as the date of clinical onset of the veteran’s first cerebrovascular accident but, on another, he states that it was six months prior to this date. Nevertheless, I accept 24 March 2004 as the date of clinical onset.
Step 4:- Is Death War-caused?
If a reasonable hypothesis has been raised in Step 3, then the fourth Deledio step requires the Tribunal to consider if it is satisfied beyond reasonable doubt that the veteran’s death was not war caused in accordance with s 120(1) of the Act. Deledio states that it is only at this stage “that the Tribunal will be required to find facts from the material before it”. If the Tribunal cannot be satisfied beyond reasonable doubt that the death was not war-caused, then the applicant’s claim must succeed.
The critical question at Step 4 therefore is whether the evidence points to the factors in the template SOPs as having contradictory explanations and, if so, whether those contradictory explanations are sufficiently strong that the weight of that evidence would satisfy the standard of proof of “beyond reasonable doubt”. In other words, do the contradictory explanations outweigh the hypothesis accepted at Step 3? If those explanations outweigh the hypothesis in Step 3 to the required standard of proof, the hypothesis would be rejected and a conclusion reached that the connection with war service is not satisfied. That is the standard required by s 120(1) of the Act. If that comparative test is not met to the required standard of proof, s 120(3) requires that a conclusion that the death was war caused must be accepted.
It is only at Stage 4 that actual evidence is considered. That evidence shows that the veteran was 79 years of age in 2004 when he had the first of his cerebrovascular accidents, and that his health (physical and mental) continued to decline because of various cerebrovascular conditions until his death in 2006 at the age of 81. Whether that death was war caused depends on the hypotheses of hypertension and/or psychiatric conditions which could be manifested as PTSD and/or depressive disorder (chronic dysthymia) and/or panic disorder.
The report of Dr Ross Phillipson, consultant psychiatrist, dated 22 March 2011, refers to a consultation by the applicant, Mrs Dyke, on 16 March 2011. Dr Phillipson’s opinion refers to Mrs Dyke’s account that her husband did not ever have any psychiatric assessment or medication during their marriage. She also told Dr Phillipson that he had never had any consultation or treatment for a psychiatric disorder prior to the war as far as she was aware. He entered the war in his late teens. She also told Dr Phillipson that she had been told by her husband’s family that he was different when he came back from the war.
The veteran was apparently a quiet man who left school without much formal education. He worked as a farmer for all his life. There was evidence of some form of gastro-oesophageal condition for which he had the medication Somac prescribed. Mrs Dyke was unaware whether the veteran had ever had “medication for a psychiatric condition or medication for high blood pressure”.[22]
[22] Exhibit 1, T-documents, pp. 48-51.
Mrs Dyke told Dr Phillipson that some four years before the veteran’s death he was still active but she thought that he was becoming a little more careless, specifically when he was in a boat or used mechanical equipment. On the basis of the account of Mrs Dyke and the medical history of the veteran, Dr Phillipson said that on the balance of the probabilities that the veteran probably suffered PTSD on his return from World War II. Dr Phillipson took into account Mrs Dyke’s evidence that the veteran did have some outbursts of anger and also suffered from sleeping difficulties and nightmares as well as the presence of gastro-oesophageal issues. Dr Phillipson’s report also shows Mrs Dyke’s account revealed that her husband may have experienced panic attacks; however, the evidence, in Dr Phillipson’s opinion, did not go so far as to justify a diagnosis of panic disorder. He went on to opine that the veteran may have had an acute hypertensive episode prior to the stroke which caused his death and that such an episode might probably be the result of anxiety related to his PTSD.
Dr Colin Brennan, a very experienced consultant psychiatrist, also provided a posthumous diagnosis of PTSD, chronic dysthymia and panic disorder. He opined that depressive disorder is often not diagnosed and if it had been this might have led to the diagnosis of PTSD. Dr Brennan provided a very detailed report and considered the medical evidence quoted in other doctors’ opinions. He also provided over 100 pages of professional journal articles on PTSD and other related articles on combat stress.
In his report, Dr Brennan states that from a review of the veteran’s “Complete Record” provided by Dr Clarke, Lexapro, an antidepressant, is identified as one of the “current medications” prescribed for the veteran. However, the Complete Record was in evidence before the Tribunal and there is no indication therein that Dr Clarke ever prescribed Lexapro for the veteran. Nevertheless, it does appear that at one time Dr Nagel, a gastroenterologist, did prescribe him the antidepressant Prothiaden, but there is no record of if, or for how long, the veteran took this medication,
Dr Brennan’s report also extensively considered the veteran’s blood pressure. Dr Brennan opines that detailed medical records “clearly state significant hypertension recorded on a number of occasions over some years prior to his eventual death”. However, a history of the veteran’s blood pressure, collated from all of the medical reports in evidence before the Tribunal, shows only two recordings of high blood pressure, these being on 4 June 2004 (160/90) and immediately after the veteran’s stroke on 8 July 2006 (179/98).[23] Indeed, there is some evidence to suggest in the veteran’s medical history that his general practitioner, Dr Clarke, was concerned about the low level of the veteran’s blood pressure. At one time Dr Clarke commenced the veteran on a trial of Minipress, a drug used in connection with prostate symptoms but also for lowering blood pressure. From his later notes, it is clear that Dr Clarke had prescribed the Minipress in relation to prostate issues (as he later changed the prescription to another drug, Flomax) and was concerned such that he suggested that the trial had to be conducted “carefully” in view of Mr Dyke’s blood pressure.
[23] See the Table in para 14 above.
The contrary evidence in this matter is provided by Dr Edward Ringrose, a consultant physician and also a very experienced specialist medical practitioner. Dr Ringrose provided an analysis of the complete medical evidence, including that of Dr Clarke, progress notes from the Chinchilla Hospital where the first stroke was managed and records from St Vincent’s Hospital in Toowoomba where the veteran finally died. Dr Ringrose also considered the report of Dr Phillipson, psychiatrist, and the historical report of Dr Palazzo. He also took account of the SOP relevant in this case.
Like the psychiatrists’ opinions, Dr Ringrose’s opinion is also a posthumous one but he considers the records of computer tomography brain scans in 2004 and a MRI of the veteran around that time also. At the time of the first stoke, Dr Ringrose noted that it was a right occipital haemorrhage. He referred to the opinion of Dr Dan McLaughlin, neurologist, dated 14 May 2004, where he diagnosed the veteran with Alzheimer’s disease with multiple ischemic changes and noted that the veteran at that stage was often confused and had a short term memory problem after that stroke.
Dr Ringrose also tabulated all blood pressure readings from the medical records from the year 2000 until the death of the veteran. Those records show that all blood pressure readings were normal (around 120/60 in 2000; and 130/80 in 2006 at the date of onset of the second cerebrovascular accident which resulted in the veteran’s death). There was only one exception to this pattern of blood pressure readings and that was 179/98 which was recorded immediately after the first stroke. Dr Ringrose opined that this may be because of intracranial pressure at the time of that stroke. He noted, however, that “within a few hours of having a stroke, it was down to 120 to 130/80”.
Dr Ringrose also stated that the consistency of these blood pressure readings “were really quite low for someone of his age” and were readings “one would expect in a person between 20 and 30 years of age”. Dr Ringrose opines that panic disorder and the other psychiatric conditions assume high blood pressure readings prior to the stroke. In his final analysis, Dr Ringrose does not support the hypothesis of PTSD, panic disorder, depressive disorder, vascular dementia or hypertension as being causative of the cerebrovascular accident.
In considering the explanations of the varying accounts of the specialist doctors, as Dr Ringrose has pointed out it is not possible to prove conclusively one way or the other the psychiatric conditions and it is perhaps not possible to be certain of the final impact of blood pressure readings. However, the analysis of Dr Ringrose is quite compelling. I also take account of Dr Brennan’s analysis and although very comprehensive in the presentation of his report there is evidence of some errors of fact included in his report and upon which he bases his conclusions.
Taking account of all of the doctors’ opinions, all of whom are highly qualified and all of whom have some decades of experience, I have concluded that the evidence of Dr Ringrose is to be preferred to that of Dr Brennan and Dr Phillipson. While opinions provided posthumously are obviously difficult and problematic even for the most experienced professionals, I am left with greater confidence in the opinion of Dr Ringrose as his analysis is based on concrete medical facts and a logic which is difficult to attribute to the opinions of Dr Brennan and Dr Phillipson. In my view, the test for expert evidence where professionals are to explain the reasoning for their professional opinions, as set in Makita (Aust) Pty Ltd v Sprowles,[24] is satisfied to a higher degree by Dr Ringrose than are the opinions of Drs Phillipson and Brennan. Therefore, I am satisfied, having considered all that evidence, that the weight of evidence is now against the hypotheses proffered by the applicant and I am satisfied that the factual evidence outweighs the hypotheses to the standard of beyond reasonable doubt.
[24] (2001) 52 NSWLR 705.
DECISION
In the circumstances, therefore, the decision under review should be affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD.
.......................[Sgd].................................................
Associate
Dated 8 July 2013
Date of hearing 6 May 2013 Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Mr Terrence O'Connor Advocate for the Respondent Mr Jeff Kelly, Departmental Advocate
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