McKewen and Repatriation Commission
[2006] AATA 838
•2 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 838
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/150
VETERANS' APPEALS DIVISION ) Re BARBARA MCKEWEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr GJ Maynard, MemberDate2 October 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..............................................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – war service – claim that death of veteran was war-caused – conditions in issue dementia pugilistica, diffuse Lewy body disease - consideration of Statement of Principles – decision affirmed.
Veterans’ Entitlements Act 1986 ss 6A, 7(2), 9, 120B, 196A, 196B
Statement of Principles No 8 of 2000
REASONS FOR DECISION
2 October 2006 Senior Member P McDermott
Dr GJ Maynard, Member1. Mrs Barbara McKewen has lodged a claim for a war widow’s pension as a result of the death of her husband, the late Mr Douglas J McKewen (“Mr McKewen”).
2. On 11 October 2004 the Repatriation Commission (the ‘Commission”) determined that the death of Mr McKewen was not war caused and rejected the claim of Mrs McKewen for a war widow’s pension.
3. Mrs McKewen sought a review of this decision from the Veterans’ Review Board. On 20 February 2006 the Veterans’ Review Board affirmed this decision of the Commission.
4. Mrs McKewen has applied to this Tribunal to review the decision of the Veterans’ Review Board.
Issues before the Tribunal
5. We have to decide whether the death of Mr McKewen was war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”).
6. The applicant’s Statement of Issues raises the issue of whether her late husband’s death satisfies Statement of Principles No 8 of 2000 in respect of dementia pugilistica [ex. A1]. We do not consider that any other Statement of Principles is relevant to the determination of this application.
7. For this purpose we will have to examine the cause of death of Mr McKewen. In particular we have to consider whether a diagnosis of dementia pugilistica can be substantiated as being a contributory cause of the death.
Service
8. Mr McKewen served in the Australian Army from 18 August 1941 until 14 March 1946.
Death of the Veteran
9. Mr McKewen died on 28 December 2001. The death certificate dated 14 January 2002 records the cause of death as:- 1(a) acute renal failure – 36 hours; 1(b) diffuse Lewy body disease – 3 years and 2. epilepsy – 6 years.
Evidence of Applicant
10. Mrs McKewen gave evidence that she first met her husband in 1955 and they married in 1960.
11. Mr McKewen had told Mrs McKewen about his boxing activities in the Army. Mrs McKewen believed that Mr McKewen was stationed in the desert in Western Australia; in South-east Queensland (in Caloundra and Southport); as well as in the country in New South Wales.
12. Mr McKewen had told Mrs McKewen that the troops “often boxed to deal with the boredom of where they were stationed” [ex. A1].
13. Mrs McKewen had mentioned a social gathering with a number of Mr McKewen’s friends in which he discussed the bouts that he had with such boxers as Roy De Abel and Stan MacInally who became accomplished professional boxers.
14. At a social gathering a friend of Mr McKewen mentioned that Mr McKewen had his nose broken in an Army fight. In her statement, Mrs McKewen recalls asking her husband whether this occurred, and he agreed that he had had his nose broken. Mr McKewen had told Mrs McKewen that he would have liked to have been a better boxer, but that he “wasn’t much up to it”. Mr McKewen had told her that he had “copped a bit of a battering”. It seems that although Mr McKewen was an enthusiastic boxer, he was no match for the more professional boxers.
15. Although Mr McKewen was not a proficient boxer, he still remained a fan of boxing all of his life. He used to go to stadium fights in Brisbane. He would listen to any significant fights that were being broadcast on the radio as well as watching fights on television. Mrs McKewen mentioned how he would swing his arms while listening to such fights.
16. We consider that Mrs McKewen gave evidence to the best of her ability. We accept her testimony without question.
Medical Evidence
17. A Number of reports of Dr P A Grant, Senior Medical Officer Compensation, Department of Veterans’ Affairs were tendered in evidence.
18. In a report dated 24 April 2006 [ex. R1] Dr Grant reviewed the medical records.
19. Dr Grant stated that there are no terminal illness notes on the file.
20. Dr Grant referred to a recent summary by Dr Whiting, Geriatrician, dated 17 October 2005 which contained the conclusion that Mr McKewen’s dementia was felt to be diffuse Lewy body disease causing Parkinsonism and dementia. A computerised tomography head scan showed some periventricular ischaemic changes thought to be consistent with hypertension. Dr Whiting had opined that the cognitive defect was also in part due to vascular dementia.
21. Dr Whiting in her report of 17 October 2005 stated that there was no history of head injury or trauma mentioned in Mr McKewen’s medical history. Although it cannot be determined whether Mr McKewen was ever asked if he took part in boxing matches during his military service, we would expect him to have been asked about any head injury.
22. Dr Grant in his report dated 24 April 2006 [ex. R1] also mentioned that the service medical records of Mr McKewen do not record him as having had a broken nose. The service medical records also do not contain any mention of a significant head injury or episodes of loss of consciousness.
23. In a report dated 8 May 2006 [ex. R2] Dr Grant reviewed the hospital notes from The Prince Charles Hospital [ex. R3].
24. These hospital notes contain reports from Dr P Varghese, Geriatrician. In initial reports that were made on 11 October 1995 [ex. R3 pp.16-17] and 30 November 1995 [ex. R3, pp 18-19], Dr Varghese made a tentative diagnosis of diffuse Lewy body disease.
25. This diagnosis was finally confirmed on 19 August 1996 when Dr Varghese wrote his report: “I feel diffuse Lewy body disease is the most probable unifying diagnosis” [ex. R3 pp.22-23].
26. Dr Lex Bilsen, who was Mr McKewen’s treating doctor, in his report of 19 August 2002 confirms that he had cared for Mr McKewen for many years but was not present when he passed away [ex. A p 9].
27. Dr Bilsen stated that a locum doctor, Dr S Cook, had considered that Mr McKewen had died from kidney failure.
28. Dr Bilsen also reported: “His health had deteriorated over many years due to diffuse Lewy body disease and Parkinson’s disease. He also suffered from epilepsy which was not a significant factor in his death. I am unaware of any other illness that may have contributed significantly to his death” [ex. A p 9].
Legislative Background
29. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
30. We find that the service of Mr McKewen is eligible war service (s 7(2)), although not operational service (s 6A), for the purposes of the Act.
31. Section 13(1) of the Act provides that where the death of a veteran is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran. We are satisfied that Mrs McKewen was a dependant of Mr McKewen.
32. As the applicant has not performed operational service, the determination of whether Mr McKewen’s death was war-caused is to be made by applying s 120(4) of the Act. This means that we are required to decide a matter arising under the Act to our reasonable satisfaction. That is we have to consider whether the death of Mr McKewen was war-caused on the balance of probabilities: see Repatriation Commission v Smith (1987) 74 ALR 537.
33. Under s 120B of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the material before us must raise a connection between the death of the veteran and some particular service rendered by that person and the SoP must uphold the contention that the death is, on the balance of probabilities, connected with that service.
34. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
35. The reference in s 196B (2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B (14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
36. We cannot be reasonably satisfied that that dementia pugilistica is the cause of death of Mr McKewen. There is no evidence that he suffered from this condition.
37. The material before us is a well documented course of Mr McKewen’s decline from 1995 to his death in 2001. Dr Varghese and Dr Whiting have followed Mr McKewen’s clinical decline and are in agreement with the diagnosis of diffuse Lewy body disease as a cause of his dementia.
38. Dr Varghese and Dr Whiting have described how the fluctuating nature of the condition more closely resembles the clinical features of diffuse Lewy body disease. Dr Varghese carefully followed the clinical course of the disease as it developed.
39. We observe that Dr Varghese questioned unusual features in Mr McKewen’s case until he was sure of the diagnosis of diffuse Lewy body disease causing dementia and symptoms of Parkinson’s disease. This diagnosis was only made after Mr McKewen’s case was fully investigated.
40. We have observed that an EEG that was performed on Mr McKewen in 1995 commented that the trace suggested a severe diffuse encephalopathy, perhaps with a super added left hemispherical structural lesion. This was not found on a CT scan which disclosed some periventricular ischaemic changes consistent with his background of hypertension.
41. At the time Dr Varghese raised the possibility that the EEG abnormality may have been the result of a small infarct not detected on the CT scan and on 11 Oct 1995 he was keeping an open mind on the firm diagnosis. The lesion may well have been the cause of the two episodes of epilepsy.
42. It is for these reasons that we cannot be reasonably satisfied that that dementia pugilistica is the cause of death of Mr McKewen.
43. We also mention that the claimed condition of dementia pugilistica is the subject of a SoP.
44. However, in the event that a diagnosis of this condition was made, we would have to examine whether the contentions of the applicant satisfy the SoP on dementia pugilistica (Instrument No 8 of 2000). Clause 9 of that SoP provides that the instrument applies to all matters to which s 120B of the Act applies.
45. Clause 5 of the SoP lists the factors that must exist before it can be said, on the balance of probabilities; that death by dementia pugilistica is connected with the circumstances of a person’s relevant service. The relevant factor is having experienced at least 100 discrete episodes of head trauma during each of which numerous blows to the head were sustained, where the first episode was at least ten years before the clinical onset of dementia puglistica.
46. Clause 8 of the SoP defines “blows to the head” as meaning external trauma to the head at least of the intensity that would be received from a forceful punch to the head from a gloved fist.
47. Whilst the evidence leaves open the possibility of repeated head traumas on service there is no basis for us to find that there were 100 discrete episodes of head trauma during Mr McKewen’s service.
48. The service medical records do not disclose any record of injuries that Mr McKewen sustained from boxing. In particular, there is no record of him having sustained a broken nose from boxing. The fact that he maintained an interest in boxing after military service does not help us to quantify the exposure during his eligible service.
49. We therefore conclude that even if a diagnosis of dementia pugilistica were made (which is certainly not the case here), the material before us must raise a connection between the death of the veteran and some particular service rendered by that person, and the SoP must uphold the contention that the death is, on the balance of probabilities, connected with that service. The material before us does not enable such a contention to be upheld.
50. We observe that the SOP imposes a requirement for a minimum number of discrete episodes of head trauma but also refers to an indeterminate description of numerous blows to the head. One blow to the head can give rise to permanent head injury, but we appreciate that brain damage can be the result of numerous less severe blows, which by themselves cause no recognised permanent damage.
51. We are concerned about the certification that the main cause of death of Mr McKewen was renal failure as there is no mention of that condition prior to his death. No autopsy was performed and we are unaware of the basis of this certification.
Decision
52. For the above reasons, we affirm the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr Maynard.
Signed: .....................................................................................
M. Brazier, Legal Research OfficerDate/s of Hearing 4 August 2006
Date of Decision 2 October 2006
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Terrence O’Connor Lawyers
Respondent Mr B Williams, Departmental Advocate
0
2
0