Miller and Repatriation Commission - [2001] AATA 634

DECISION AND REASONS FOR DECISION [2001] AATA 634

ADMINISTRATIVE APPEALS TRIBUNAL)

) Nº V1999/1296

VETERANS' APPEALS DIVISION )

Re: JACK STEWART MILLER

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:      Miss E.A. Shanahan, Member
Date:             5 July 2001
Place:           Melbourne

Decision:The Tribunal sets aside the decision under review. The applicant's atrial fibrillation, indicative of underlying ischaemic heart disease, is war-caused within the meaning of that term in section 8 of the Veterans' Entitlements Act 1986.
Assessment regarding the level of pension to be decided by the parties in consultation.

. . . . . (Sgd) E. A. Shanahan. . . . . .
Member
CATCHWORDS
VETERANS' AFFAIRS - whether atrial fibrillation indicative of ischaemic heart disease was war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 - whether the material raises a reasonable hypothesis connecting atrial fibrillation/ischaemic heart disease with hypertension, hyperlipidaemia and smoking - application of Statements of Principles Instrument Nº 9 of 1996, Instrument Nº 140 of 1996, Instrument Nº 77 of 1997, Instrument Nº 83 of 1995
Veterans' Entitlements Act1986 ss.120(1), 120(3), 120A

Statements of Principles:

Instrument Nº 83 of 1995 concerning Hypertension
Instrument Nº 9 of 1996 concerning Atrial Fibrillation
Instrument Nº 140 of 1996 concerning Ischaemic Heart Disease
Instrument Nº 77 of 1997 concerning Ischaemic Heart Disease
Connors v Repatriation Commission (1999) 59 ALD 61
Repatriation Commission v Keeley (2000) 60 ALD 401
East and Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Cooke (1998) 160 ALR 17
McKenna v Repatriation Commission (1999) 29 AAR 70
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

5 July 2001 Miss E. A. Shanahan, Member

The applicant seeks review of a decision of the Veterans' Review Board ("the VRB") dated 30 August 1999 wherein the VRB affirmed the decision of a delegate of the Repatriation Commission dated 19 August 1998. This decision found that the veteran's atrial fibrillation was not war-caused. The claim, lodged by the veteran, had been couched in the terms heart problems, breathing problems, macular degeneration, hearing problems and vascular disease. The claim for sensorineural hearing had been accepted as was the atherosclerotic peripheral vascular disease. The application to the Administrative Appeals Tribunal was on the basis of the decision relating to atrial fibrillation.
The applicant was represented by Mr D. De Marchi, solicitor, and the Repatriation Commission was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the documents") and received exhibits from both parties. The applicant tendered a report of Dr M. Rosenbaum dated 6 March 2000 [Exhibit A1]. The respondent provided a report from Dr J. Hammond, dated 4 May 2000 [Exhibit R1] and the clinical notes from Dr M. Conway, the applicant's general practitioner, received under a copy of a letter dated 12 January 2000 [Exhibit R2]. The veteran gave evidence before the Tribunal, as did Dr Rosenbaum for the applicant, and Dr Hammond for the respondent.
Background to the Application
The applicant was born on 5 November 1919, and served in the Australian Army from 12 June 1940 until 29 October 1945. As he served overseas, the whole of his service is considered to be operational service. The later attracts a standard of proof as provided in subsection 120(1) and (3) of the Veterans' Entitlements Act1986 ("the Act"). The Tribunal is required to find the atrial fibrillation was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The veteran lodged his claim with the Repatriation Commission on 12 May 1998. Section 120A of the Act, effective 1 June 1994, is therefore attracted to this application and any decision resulting from it. The Tribunal is required to consider the Statements of Principles issued by the Repatriation Medical Authority ("RMA") as they applied at the time of the application. Whilst there are numerous Federal Court decisions relating to the application of Statements of Principles, the overall direction appears to be that the Tribunal should apply Statement of Principles ("SoP") in effect at the time of the application for pension.
The applicant's application to this Tribunal related to the VRB's refusal of the claim for atrial fibrillation. The claim to the VRB has been couched in general terms, namely heart problems, breathing problems and vascular disease. It is not clear to this Tribunal when this claim was converted to a claim for atrial fibrillation. Atrial fibrillation was first detected in 1989 when the treating doctor noticed an irregular pulse and requested a electrocardiograph which confirmed the presence of atrial fibrillation. The VRB found that the applicant did not satisfy the requirements of SoP Instrument Nº 9 of 1996 concerning Atrial Fibrillation.
Evidence before the Tribunal
At the commencement of the hearing Mr De Marchi requested the Tribunal to consider that the applicant's condition was not primarily atrial fibrillation but ischaemic heart disease. Mr Douglass disagreed with the proposition that the claim could be extended to ischaemic heart disease, but agreed that this was a matter for the Tribunal. The applicant had also contended that hypertension may be a factor relating to the claim. Mr Douglass objected. In summary, Mr Douglass stated that the respondent was no clearer as to what the applicant's claimed diagnosis was. At this time the Tribunal reserved its decision as to the correctness of the claim, and advised that it would make a decision regarding the claim for ischaemic heart disease once it had heard all the evidence.
The applicant gave evidence before the Tribunal. For convenience sake, the evidence of Dr Rosenbaum and Dr Hammond was interposed before the applicant gave his evidence. The parties had agreed prior to the applicant's evidence that the applicant had commenced smoking whilst in the services. The applicant agreed he had the accepted disabilities of nervous dyspepsia, neurodermatitis, bilateral sensorineural hearing loss with occasional tinnitus and atherosclerotic peripheral vascular disease affecting both legs. He gave evidence that he was physically limited by the development of shortness of breath on minimal exertion. He admitted to frequent episodes of chest pain, but was unable to recall when these first commenced. He also outlined episodes of syncopy in which he had lost consciousness after exertion. One such episode had resulted in his admission to the Royal Melbourne Hospital. The applicant indicated that the pain he suffered was localised to the epigastrium and that it was frequently brought on by eating certain foods. He had not experienced this pain as a result of exertion as his physical activities were limited primarily by the development of pain in both legs. His major symptoms related to his peripheral vascular disease with cramps in the feet and legs and coldness of the feet. The applicant advised that he rarely went out, did not belong to any clubs, did not participate in any sporting activities and spent most of his time within his home. The applicant was unable to recall the events of 1989 when he developed an irregular pulse and he relied on his doctors' reports. He was able to recall consultations with vascular surgeons at the Austin and Heidelberg Repatriation Hospital regarding his peripheral vascular disease and, on questioning by the Tribunal, felt that he may well have had a stress test and lung function tests. He recalled that he had been advised that the only treatment for his peripheral vascular disease was surgery. The surgeons he had consulted, namely Mr P. Milne and Mr M. Hoare, had advised that at his age careful consideration of surgery would need to be given.
The Tribunal felt that the applicant had probably attended the Austin and Heidelberg Repatriation Hospital over some period of time and at the completion of the applicant's evidence requested that Mr Douglass obtain the medical records from the Austin and Heidelberg Repatriation Hospital. It was felt that this might elucidate any investigations and medical opinions over the years.
Dr Rosenbaum gave evidence before the Tribunal. This was in addition to his written reports of 6 April 1999, 20 April 1999 and 6 March 2000. Dr Rosenbaum in his report of 6 April 1999 was of the opinion that the applicant's history of cigarette smoking, commencing at the time of his service, was the major cause of coronary artery and peripheral vascular disease. He confirmed his opinion that the applicant's irregular heart beat (atrial fibrillation) could be due to high blood pressure and coronary artery disease, despite a recent finding of a normal echocardiogram. Dr Rosenbaum noted several contributing factors, namely cigarette smoking, elevated cholesterol levels, elevated blood pressure and the presence of peripheral vascular disease. Dr Rosenbaum commented on the electrocardiogram ("ECG") performed in July 1989 which showed atrial fibrillation, and suggested an old anterior myocardial infarct. Dr Rosenbaum concluded that there was a 50 per cent chance that this in fact represented myocardial ischaemia. He reiterated that the presence of high blood pressure, elevated cholesterol levels, peripheral vascular disease, the history of cigarette smoking and the ECG evidence led to a probable diagnosis of coronary artery disease.
In cross-examination Dr Rosenbaum confirmed that the applicant had told him he had ceased smoking in 1985. He agreed that the ECG, performed by himself in 1999, was unremarkable and did not suggest ischaemic heart disease. An ECG performed in the year 2000 by Dr Rosenbaum had shown a fast irregular heart beat, atrial fibrillation, and no other significant findings. Dr Rosenbaum agreed that an ECG, dated 17 November 1987, suggested left ventricular strain pattern rather than ischaemia. He also agreed with Dr Hammond's written report that the commonest cause of left ventricular strain was pre-existing hypertension. On the balance of probabilities, Dr Rosenbaum was of the opinion that the changes in the electrocardiograph slightly favoured the presence of ischaemic heart disease. Dr Rosenbaum was not disturbed by the fact that the ECG, some 10 years after the episode of 1989, did not show evidence of myocardial ischaemia. In re-examination Dr Rosenbaum confirmed his opinion that the electrocardiogram performed in July 1989 showed both atrial fibrillation and the suspicion of past myocardial infarction.
In response to questions posed by the Tribunal Dr Rosenbaum stated that the commonest causes of atrial fibrillation in persons over the age of 60 years was hypertension or ischaemic heart disease. He agreed that the two conditions frequently co-existed. He did not believe that, in the interpretation of electrocardiograms, presence of an arrhythmia masked ischaemic myocardial changes.
Dr Hammond gave evidence for the respondent. Dr Hammond is a cardiologist with a special interest in hypertensive cardiac disease. Dr Hammond had supplied a written report dated 4 May 2001. In evidence he affirmed his previous written report. Dr Hammond had not been able to obtain a clear history of chest pain on exertion. The ECG he had performed confirmed atrial fibrillation, but was otherwise within normal limits. Dr Hammond viewed the electrocardiogram, performed in July 1989, and felt that it was not diagnostic of old anterior myocardial infarction, but that the poor R-wave progression would raise that possibility in the mind of the person reporting the ECG. He stated that a similar pattern can be seen in the condition of left ventricular hypertrophy and could also be due to lead misplacement. Dr Hammond felt the ECG performed in 1987 suggested left ventricular strain and left ventricular hypertrophy. Dr Hammond felt the changes in the ECG of 1989 would raise the possibility of previous antero-septal myocardial infarction in the mind of the reporting cardiologist but that such changes could be a normal variant. Dr Hammond reiterated there were several explanations for the changes present in the ECG of July 1989 but agreed these changes raised the possibility of previous myocardial infarction. Dr Hammond had viewed the echocardiogram of 2001 and agreed that this was normal. He was of the opinion that one would expect to see an area of decreased contraction of the anterior wall in someone who had suffered an antero-septal infarct in the past. He felt the echocardiographic findings would be quite conclusive. In his opinion, the echocardiogram whilst reported as normal did show evidence of borderline left ventricular hypertrophy. In conclusion, Dr Hammond felt he could definitely state that Mr Miller had not suffered a myocardial infarction and that the ECG changes in the past have been due to left ventricular hypertrophy. In his oral evidence, Dr Hammond confirmed his written opinion that the requirements of paragraph 5(a) of SoP regarding hypertension had been met on the balance of probabilities. He felt the applicant was suffering from cardiac disease at the time of the clinical onset of atrial fibrillation and attributed these changes to the presence of pre-existing hypertension.
Dr Hammond was questioned directly with respect to Instrument No. 140 of 1996 and the factors delineated in factors 5(a) to (w). Dr Hammond felt there was no evidence of a definitive nature to support the proposition that Mr Miller had had a previous myocardial infarct. Whilst acknowledging the presence of an arrhythmia he did not equate this with evidence of myocardial ischaemia. In Dr Hammond's opinion there was no evidence of coronary occlusion.
In cross-examination, Dr Hammond agreed that the existence of hypertension, hypercholesterolemia, peripheral vascular disease and the smoking history would make the likelihood of coronary atherosclerosis high. He also agreed that the presence of shortness of breath on exertion could be a symptom of ischaemic heart disease. Dr Hammond felt that cardiac disease was present but attributed this to ventricular hypertrophy secondary to hypertension. He felt that probably every person present in the hearing room on that day had a degree of coronary atherosclerosis.
Dr Hammond agreed that on the basis of a reasonable hypothesis, Mr Miller had a degree of coronary atherosclerosis. He however disagreed that there was evidence of a past myocardial infarct. He stated that the echocardiogram Dr Rosenbaum had performed unequivocally proved that it was not a myocardial infarct. Whilst Dr Rosenbaum had stated that a normal echocardiogram did not exclude a myocardial infarct, Dr Hammond disagreed. In answer to questions posed by Mr De Marchi for the applicant, Dr Hammond stated the results of echocardiography depended on the expertise of the technician and the interpretation of the cardiologist. The line of questioning that followed regarding technicalities related to echocardiography was not helpful. Mr De Marchi further questioned Dr Hammond on the ECG findings of 1989. Dr Hammond felt these findings were somewhat equivocal and left it to the Tribunal to decide what level of evidence was applicable. Dr Hammond concluded that at the time of his examination there was no evidence of cardiac failure and the ancillary evidence concerning heart function, left ventricular function and the echocardiogram were all normal.
In re-examination by Mr Douglass, Dr Hammond was of the opinion that none of the required factors outlined in paragraph 2 of the SoP Instrument No. 140 of 1996 were met. He did not believe that the ECG performed in 1989 and reported by Dr Lim as showing possible evidence of myocardial ischaemia pointed to such a diagnosis.
In response to questions by the Tribunal, Dr Hammond agreed that the changes in the ECG of 1989 were subtle. He agreed that they could represent a small area of muscle damage which did not involve the full thickness of myocardium. In re-examination by Mr De Marchi, Dr Hammond agreed that, if the echocardiogram had not examined the relative area of the heart, an old myocardial infarct is not excluded. Dr Hammond felt it probable that Mr Miller would develop symptomatic coronary atherosclerosis at some time in the future.
The Tribunal had available to it the clinical notes of Dr M. S. Conway, the applicant's local medical officer [Exhibit R2]. These date from 25 August 1981 until 3 December 1999 and contain copies of several letters from the Austin Repatriation Hospital. The notes indicate that from 1981 the applicant complained of epigastric discomfort and mild pain and was noted to have systolic hypertension ranging from 170 to 180 throughout 1981 and 1982. On 28 October 1982 Dr Conway notes cardiomegaly, in that the apex beat of the heart was at the anterior axillary line. At that time the applicant's blood pressure was 170/95. Further investigation of his epigastric pain, in the form of a barium meal, revealed no abnormality and treatment with Mylanta and other antacids was ineffective. On 27 February 1984, Dr Conway notes the applicant had ceased smoking. On 15 December 1987, the applicant's blood pressure is recorded as 190/100. On 27 May 1988, intermittent claudication in the right leg is noted and elevated cholesterol and triglycerides were reported. At that time he was referred for vascular surgical opinion at the Repatriation General Hospital. Serum cholesterol in May 1988 was 7.9. On 28 July 1989, Dr Conway noted that the applicant's pulse was irregular at the rate of 120 at the radial pulse. He formed the opinion that the applicant was in atrial fibrillation and obtained an ECG which confirmed the presence of atrial fibrillation and suggested old antero-septal infarction. By 5 August 1989 the applicant had reverted to sinus rhythm with a rate of 80 per minute. On 29 August 1990, Dr Conway recorded the applicant's blood pressure as 130/80 but noted his serum cholesterol to be 8.0 and gave advice on diet to reduce these cholesterol and triglyceride levels.
Dr Conway's clinical notes record a visit on 24 April 1991 wherein the applicant reported that he had suffered a dizzy spell some days before, had been taken to the Royal Melbourne Hospital by ambulance and observed in the casualty department of that hospital for a period of five hours. Associated with the dizziness, the applicant had felt weakness in the legs and had experienced some chest pain. Dr Conway's examination revealed a blood pressure of 200 on 80 and a soft early systolic murmur in the aortic area radiating to the carotid. Carotid Doppler was ordered and found to be normal. Serum cholesterol level on 26 August 1991 was 8.2 and Zipex 10 mg daily was commenced. By 10 October 1991, the cholesterol level had fallen to 5.0 with the use of Zipex and dietary restrictions. On 4 June 1992 the applicant's blood pressure was recorded as 210/100. He was commenced on Coversyl 3 mg daily and this was increased to 4 mg daily on 25 June 1992. Throughout this period he continued to suffer intermittent claudication predominantly in the right leg. His blood pressure remained well controlled throughout 1992 on 4 mg of Coversyl daily. On 13 May 1993 his blood pressure was recorded as 220/100. On 20 May 1993 Plendil ER 5 mg per day was added to his medication regime. On 27 May 1993 the blood pressure was 180/190 and Plendil was increased to 10 mg daily. This resulted in a fall one week later to a blood pressure of 150/80. Blood pressure remained well controlled throughout 1993 and 1994. In September 1995, Avapro was added to his anti-hypertensive regime. Throughout 1995 to 1997 the applicant remained relatively stable although he continued to suffer from intermittent claudication in both lower limbs. In 1998 the pain in both lower limbs on walking increased and a Doppler study revealed diffuse disease in the arteries of both legs. He was again referred to a vascular surgeon at the Repatriation Hospital. In June 1998 serum cholesterol was 7.0 and triglycerides 2.9. Lipex 20 mg daily was commenced. Blood pressure remained under good control. By November 1998, the serum cholesterol had fallen to 4.7 and triglycerides to 1.7.

Dr Conway's notes include a letter from the Repatriation General Hospital, dated 27 July 1988, reporting a consultation with Mr Peter Milne, vascular surgeon. Mr Milne reported right external iliac stenosis with right superficial femoral artery occlusion and a calcified common femoral artery. On the left side there were good pulses but bruits were present over the iliac and femoral arteries indicating milder occlusive disease. At that time it was felt that the applicant's peripheral vascular disease was insufficiently severe to warrant operative interference. On 2 April 1998, a duplex ultrasound of the lower limb arteries revealed a small abdominal aortic aneurysm and diffuse plaque formation in both lower limb arteries with segmental occlusion involving the right proximal superficial femoral and the left common femoral and proximal superficial femoral arteries. There was reduced run off bilaterally. Mr M. Hoare reviewed the applicant on 29 April 1998 and noted absence of the right femoral pulse with right iliac and femoral bruits. No pulses were palpable in the left lower limb. Mr Hoare reported that he had arranged for Mr Miller to have an exercise treadmill test, a lumber aortogram and bilateral femoral angiography as an outpatient. These studies were presumably performed and Mr Hoare, in his letter dated 1 June 1998, reports an occluded left common and external iliac artery with irregular atheroma in the right common iliac artery, severe atheromatous disease in the right external iliac artery and occlusion of the right superficial femoral artery. Mr Hoare recommended aorto-left femoral profunda bypass grafting but at that time the applicant did not to wish to proceed to surgery.
Dr Conway's clinical notes have been most helpful to the Tribunal, in that they have documented contemporaneously the existence of systolic hypertension since 1981, cardiomegaly since 1982 and hyperlipidemia from May 1988. In addition, Dr Conway noted the existence of peripheral vascular disease in July 1988. While the hypertension and hyperlipidemia were subsequently controlled by medication and the ECG evidence of left ventricular strain recorded in November 1987 also resolved with treatment, the applicant's peripheral vascular disease progressed from 1988 to 1998. Dr Conway's observations recorded in his clinical notes indicate progressive cardiovascular disease from 1981 onwards.
Primarily on the basis of Dr Conway's notes, the Tribunal was forced to the conclusion that the applicant suffered from ischaemic heart disease and that atrial fibrillation was a sign and symptom of this ischaemic heart disease. However, the Tribunal felt it was wise to obtain a medical record from the Heidelberg Repatriation Hospital and, as previously noted, Mr Douglass undertook to obtain this record. On 11 September 2000, the Tribunal received copies of documents provided by the Austin Repatriation Medical Centre. These consisted of two pages of post right common femoral angiography observations and the report of the technique used . No result of the investigation was included. The Tribunal felt this report to be inadequate and not reflect the totality of the applicant's medical records at the Austin Repatriation General Hospital.
The Tribunal subpoenaed the medical file of the Austin Repatriation General Hospital relating to the applicant. There was considerable delay in receiving response from the Medical Records Department of this hospital and the record copy received was extremely flimsy and added little to the medical records as already presented to the Tribunal.
The Tribunal determined that the applicant was suffering from ischaemic heart disease at the time of the onset of atrial fibrillation in 1989. The respondent's representative, Mr Robert Douglass, was advised of this preliminary decision as he has been given leave to submit written submissions should the Tribunal find that ischaemic heart disease existed.
The respondent's further submission was received on 9 February 2001. The applicant had reserved the right to reply to this submission but no reply had been received by 23 May 2001. The respondent in the written submission conceded that it was open to the Tribunal to expand the diagnosis of the claimed condition from atrial fibrillation to atrial fibrillation and ischaemic heart disease. The respondent argued the SoP applicable was that in effect at the time of the Commission's determination having addressed the debates arising from the Federal Court decision in Keeley and Repatriation Commission and the Full Federal Court decision in Repatriation Commission v Keeley. The Tribunal agrees that the appropriate SoP is that in effect at the time of the Repatriation Commission determination, i.e. 19 August 1998.
The Tribunal has reached its conclusion that the claim be altered to ischaemic heart disease after considering all the evidence but, in particular, the clinical notes of the treating general practitioner Dr Conway. Dr Conway documented the presence of electrocardiographic left ventricular strain on 17 November 1987; the presence of hypertension on 18 December 1987; elevated serum cholesterol and lipids on 25 May 1988 and the presence of moderately severe peripheral vascular disease in July 1988. These diagnoses preceded the onset of atrial fibrillation confirmed by electrocardiogram on 28 July 1989. Whilst there was some disagreement between the expert witnesses, Dr Hammond and Dr Rosenbaum, the ECG done on 28 July 1989 was reported by Dr Lim as being suggestive of old antero-septal infarction. On the balance of probabilities the applicant suffered from ischaemic heart disease.
Legislation
The standard of proof required to link war service with the veteran's hypertension is delineated in subsections 120(1) and (3) of the Act as follows:
"120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or 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.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or 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:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
…"
As the veteran's claim was lodged after 1 June 1994 section 120A of the Act is attracted. The reasonableness of any hypothesis raised must be assessed in terms of the SoP issued by the Repatriation Medical Authority. The relevant SoP is Instrument No. 140 of 1996 as amended by Instrument No. 77 of 1997 and Instrument No. 37 of 1998.
Subsections 120A(1) to (4) of the Act provide:
"120A(1)        This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1:   Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:   For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or 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.
Note:    See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."

Application of the SoPs

In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Court of the Federal Court stated, at 206, as follows:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

The Hypothesis Raised by the Applicant

The applicant contends that his atrial fibrillation was secondary to ischaemic heart disease which pre-existed the onset of atrial fibrillation. The SoP relating to ischaemic heart disease lists the factors which must be present before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease with the circumstances of a person's relevant service. These include the presence of hypertension before the clinical onset of ischaemic heart disease (factor 5(a)), the presence of dyslipidaemia before the clinical onset of ischaemic heart disease (factor 5(d)) and the smoking of at least five cigarettes per day or the equivalent thereof in other tobacco product for at least three years before the clinical onset of ischaemic heart disease and where smoking has ceased, the clinical onset has occurred within 15 years of cessation (factor 5(e)). The applicant relied primarily on factor 5(e). The applicant had smoked until 1984 or 1985, that is, within three years before the onset of atrial fibrillation regarded as indicative of ischaemic heart disease.
The applicant must first satisfy the requirements of SoP Instrument No. 140 of 1996 and Instrument No. 9 of 1996.
During the hearing no argument was advanced regarding the existence of hyperlipidaemia or hypertension which may be related to his war service. In addition the T documents did not contain any information supporting such a relationship and therefore the applicant's case relies entirely on factor 5(e) relating to his smoking. The respondent, in the submission dated 9 February 2001, conceded that should the Tribunal find there is a reasonable hypothesis that the veteran suffered from ischaemic heart disease in 1989, it was conceded that the requirements of the ischaemic heart disease SoP were met via the smoking factor. The applicant has previously provided evidence of his smoking habits during his service and it is on this basis that his peripheral vascular disease has been accepted as a war-caused ailment.
the material before the tribunal pointing to an hypothesis connecting the development of ischaemic heart disease and atrial fibrillation with the circumstances of service
The applicant's smoking questionnaire indicates that he commenced smoking whilst in service in the Army in 1941 and thereafter smoked 30 to 40 cigarettes per day. He ceased in 1984 on his treating doctor's advice. His severe peripheral vascular disease has also been attributed to smoking and accepted as a war-caused condition.
The evidence before the Tribunal indicates that a reasonable hypothesis has been raised connecting the applicant's ischaemic heart disease and atrial fibrillation to his smoking which commenced during operational service. Having accepted the hypothesis raised, the Tribunal is required to consider the material in terms of the relevant SoP. Having found that the applicant suffers from ischaemic heart disease and that atrial fibrillation was a sign and symptom of this ischaemic heart disease, the SoP Instrument No. 9 of 1996 is satisfied. As SoP Instrument No. 9 of 1996 is dependent on the existence of ischaemic heart disease, the Tribunal has considered the SoP Instrument No. 140 of 1996 and whilst the factors 5(a), (d) and (e) are satisfied, the only factor that can be related to the applicant's operational service is factor 5(e). The applicant smoked 30 to 40 cigarettes per day from the time of his operational service until he ceased smoking on medical advice in 1984, three years before he developed clinical evidence of ischaemic heart disease.
Conclusion
The Tribunal has found that a hypothesis exists linking war service to the commencement of smoking and its continuation post service. In 1989, five years after cessation of smoking, the applicant developed atrial fibrillation in the setting of previously existing hyperlipidaemia, hypertension and peripheral vascular disease. On the balance of probabilities, the development of atrial fibrillation was indicative of underlying ischaemic heart disease.
The Tribunal is not satisfied beyond reasonable doubt that the applicant's ischaemic heart disease did not arise from a war-caused injury. The applicant's claim is therefore successful and the decision under review is set aside with the assessment of the level of pension to be decided by the parties in consultation.
I certify that the thirty-six (36) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E. A. Shanahan, Member
Signed:         .....................................................................................
  Member Support Team
Date/s of Hearing  9 September 2000
Date of Decision  5 July 2001
Solicitor for the Applicant         De Marchi & Associates
Solicitor for the Respondent    Mr R. Douglass, departmental advocate