May and Repatriation Commission

[2003] AATA 1216

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1216

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/63

VETERANS' APPEALS DIVISION		)
Re		VALMA BUDD MAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Senior Member

Date4 December 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether the death of the veteran was caused by his war service – whether veteran suffered from vascular dementia or Alzheimer’s disease – diagnosis – standard of proof required – whether a different standard of proof applies in death cases

Veterans’ Entitlements Act 1986

Cooke v Repatriation Commission (1998) 160 ALR 17
Budworth v Repatriation Commission [2001] FCA 1421
Re Cowie and Repatriation Commission [1999] AATA 334
Re Campbell and Repatriation Commission [2001] AATA 559
Re Turner and Repatriation Commission [2002] AATA 799
Benjamin v Repatriation Commission (2001) 34 AAR 270
Deledio v Repatriation Commission (1998) 49 ALD 193

REASONS FOR DECISION

4 December 2003 Mr B J McCabe, Senior Member

Introduction

1.      The applicant in these proceedings is Mrs Valma May. Her late husband was a veteran of World War II. He died on 15 March 2000. The cause of death was certified as pneumonia, but it was accepted the veteran suffered from dementia and Alzheimer’s disease. The applicant says Mr May’s death was related to his service because he suffered from vascular dementia. The respondent and the Veterans’ Review Board rejected the applicant’s claim.

2.      The case turns on whether a diagnosis of vascular dementia can be made out having regard to the Statement of Principles relating to cerebrovascular disease, and on whether – if the diagnosis is accepted – there is a reasonable hypothesis connecting that condition with the veteran’s service as required under the Veterans’ Entitlements Act 1986 (the Act).

The Material before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with three statements by the applicant, dated 15 May 2001 (Exhibit 2), 2 June 2001 (Exhibit 4) and 30 May 2002 (Exhibit 3); and a range of medical evidence:

§Report of Dr Labrom, 6 March 2002 (Exhibit 5) and notes (Exhibit 10)

§Report of Dr Goodwin dated 13 September 2001 (Exhibit 6)

§Report of Dr Goodwin dated 27 November 2002 (Exhibit 7)

§Report of Dr Chalk dated 3 December 2002 (Exhibit 8)

§Report of Dr Rowland dated 9 September 1960 (Exhibit 11)

§Report of Dr Richards dated 14 September 1960 (Exhibit 12), and

§Clinical notes from Hopetoun Nursing Home (Exhibit 9)

4.      Mr Harding, for the applicant, also tendered extensive and useful written submissions. Mr Smith appeared for the respondent.

The Facts

5.      The applicant’s husband, Mr Donald May, enlisted in the Royal Australian Air Force on 27 April 1942. He was demobilised on 20 December 1945 after having served in Canada with the Royal Canadian Air Force and in the United Kingdom with the Royal Air Force. He served as a crew-member on planes undertaking anti-submarine patrols and convoy escorts in the Atlantic Ocean.

6.      Mr May died on 15 March 2000. He was 78 years of age. The causes of death were listed on the death certificate as pneumonia and Alzheimer’s disease.

7.      The Veterans’ Review Board rejected the applicant’s original claim for compensation because it found the Statement of Principles relating to Alzheimer’s disease (No 378 of 1995) could not be satisfied. The statement requires evidence the veteran was unable to obtain appropriate clinical management for Alzheimer’s disease while he was on operational service. There is no evidence that Mr May suffered from Alzheimer’s disease during the war.

8.      Mrs May now says there is another connection between her late husband’s death and his service. She claims he was suffering from vascular dementia. She says he developed vascular dementia as a result of smoking and drinking, hypertension and as a result of anxiety – all associated with his war service. If that is true, there would be a reasonable hypothesis connecting the veteran’s death with his war service, and she would be eligible to receive compensation.

9.      Did Mr may suffer from vascular dementia? The applicant gave evidence that he became a heavy drinker after the war. She said he had merely been a social drinker before enlisting: prior to that, money was scarce, and he could not afford to drink too much. She said in her oral testimony that Mr May developed a taste for beer and Guinness, in particular, while he was in the service. When he returned from the war, he drank at least one bottle of beer each weeknight.  He drank more on weekends. Beer consumption became part of a routine. He would also go to the pub with his friends, and in latter years – after he moved to Brisbane from North Queensland in about 1976 - he became an avid home brewer.

10.     Mr May lived in North Queensland and worked for the Department of Main Roads after the war. It was hot and he played a lot of sport. He drank a great deal when he was with his friends, Mrs May said.

11.     I have no reason to doubt Mrs May’s evidence about her husband’s heavy consumption of alcohol, although it is difficult to be precise about how much he actually drank on a regular basis. From her account, it is likely he consumed more than 250mg of alcohol each week.

12.     The applicant also said her late husband became a heavier smoker after the war. She said beer and cigarettes often went together. She was unclear about how much Mr May smoked before enlisting; she described him as a light social smoker. He smoked “roll your owns” at that point. She said his smoking would fluctuate at least partly in response to stress. Once again, I have no reason to doubt Mr May became a heavier smoker after the war, and – according to Mrs May’s account – he smoked steadily from breakfast until bedtime every day until around 1992.

13.     Mrs May said the veteran had difficulty at work that suggested a mental decline. In a report dated 14 September 1960, prepared for the Commissioner of Main Roads, Dr Richards noted Mr May was having trouble with the act of signing cheques, and said Mr May feared others would notice him shaking. Dr Richards concluded Mr May was suffering from a “simple anxiety state”. There is no evidence that Dr Richards was aware of the late veteran’s alcohol consumption, however.

14.     Dr Goodwin, who gave evidence at the hearing, said the evidence about difficulty signing cheques was significant. He noted that long term alcohol abuse affects cognitive skills and might lead to an inability to put together thoughts and actions. Dr Goodwin also noted that Mr May was being treated for hypertension from the mid-1970s. (Mrs May said she could recall her husband taking blood pressure medication in the 1960s). He said, in his report of 27 November 2002, that hypertension may have been a “factor in worsening dementia through progress of vascular dementia”. The smoking could have made a further contribution. Dr Labrom reached a similar view.

15.     The applicant also gave evidence of transient ischaemic attacks (or small strokes) occurring around the time Mr May entered the nursing home in 1985. He had a CT scan in 1987 in which a Dr Saines concluded there was no evidence of cerebrovascular disease. Dr Goodwin pointed out that a scan might miss cerebrovascular lesions. He noted that alcoholism was a convincing mimic of other conditions. But Dr Chalk – whose report was tendered by the respondent – said it was most unlikely that a scan would miss all of the lesions that would be present in the event of dementia. I think that is significant.

16.     Dr Saines diagnosed the veteran as suffering from Alzheimer’s disease. Dr Chalk agreed. He said there was no evidence of vascular dementia.

17.     The best that can be said of the evidence is that Mr May might have suffered from vascular dementia that can be linked back (through drinking and smoking) to his service. The more likely diagnosis, according to Dr Chalk in particular, is Alzheimer’s disease, which is not war-caused.

The Standard of Proof

18.     Mr Harding, for the applicant, agreed that where an applicant seeks compensation in respect of an injury or disease as opposed to a death, the diagnosis must be decided on the balance of probabilities. That much seems clear from the decision of the Federal Court in Cooke v Repatriation Commission (1998) 160 ALR 17; see also Budworth v Repatriation Commission [2001] FCA 1421 at para 15. But Mr Harding said the position was different where the question is whether the veteran’s death is war-caused. In death cases, the fact of the veteran’s death is presumably beyond doubt. What remains to be determined is whether death was connected to the veteran’s war service. That question is decided on the reverse criminal standard provided for in s 120(1), Mr Harding explained.

19.     Mr Harding referred to two decisions of the Tribunal: Re Cowie and Repatriation Commission [1999] AATA 334 and Re Campbell and Repatriation Commission [2001] AATA 559. Those decisions appear to support Mrs May’s claim and would result in an applicant for a widow’s pension being treated more favourably than an applicant for a disability pension. I note that in both of these cases, the Tribunal was comprised of three members including Deputy President Forgie. It follows that the decisions necessarily carry considerable weight.

20.     The respondent relies on Cooke. Mr Smith also referred me to the Tribunal’s decision in Re Turner and Repatriation Commission [2002] AATA 799. Senior Member Sassella rejected an argument in similar terms to that pressed by Mr Harding. I note he did not refer to Cowie or Campbell in the course of his reasons, although those cases were decided prior to his decision in Turner. Senior Member Sassella analysed Cooke and Benjamin v Repatriation Commission (2001) 34 AAR 270. He noted the court in Cooke did not differentiate in its reasons between death and disease when it concluded that a diagnosis had to be made out on the balance of probabilities.

21.     With respect, I prefer the reasoning in Turner. If the Tribunal is to identify an appropriate statement of principles as required in cases like Deledio v Repatriation Commission (1998) 49 ALD 193, it must settle on a diagnosis. The same need arises whether the claim is for a pension arising out of a disability or a death. There is no reason to suppose the decision in Cooke intended that the standard of proof applicable to different sorts of claims should differ, given the purpose of the inquiry is essentially the same.

22.     Mr May is more likely to have suffered from Alzheimer’s disease than vascular dementia. Having made that determination on the balance of probabilities, I must apply the Statement of Principles relating to Alzheimer’s disease. I cannot apply the Statement of Principles relating to cerebrovascular disease. Since there is no question of a connection between Alzheimer’s disease and Mr May’s war service, the applicant’s claim must fail.

Conclusion

23.     The decision of the Repatriation Commission is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member

Signed:         .......................................................................................
  Associate

Dates of Hearing  28 November 2002 and 6 March 2003
Date of Decision  4 December 2003
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan & Luton
Solicitor for the Respondent     Mr M Smith, Departmental Advocate