Mitchell and Repatriation Commission

[2008] AATA 294

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 294

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600114

VETERANS' APPEALS DIVISION		)
Re		NANCY EDITH MITCHELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis, Senior Member R W Dunne
and Mr S J Ellis, Member

Date29 February 2008

PlaceAdelaide

Decision For reasons given orally at the hearing, the tribunal affirms the decision under review.

DG Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – war widow’s pension – veteran engaged in operational service in World War II with RAAF – death from myocardial infarct – no evidence that veteran suffering from depressive disorder for five years prior to clinical onset of ischaemic heart disease – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 120(1), 120(3) and 120A

McKenna v Repatriation Commission (1999) 86 FCR 144

Re Demczuk and Repatriation Commission [2005] AATA 1012

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR ORAL DECISION

14 April 2008   Deputy President D G Jarvis,
  Senior Member R W Dunne and
  Mr S J Ellis, Member

1.      The applicant, Nancy Edith Mitchell, has requested written reasons for the decision of the tribunal that we delivered orally at the conclusion of the hearing of this matter.  The following is an edited version of the reasons we gave orally for our decision.  However, in order to put our conclusions and findings in context, we will now supplement our oral reasons by referring to certain background facts which were not in contention, and to the relevant legislative scheme.

2.      Mrs Mitchell is the widow of the late Graham Wilson Mitchell, who died on 12 November 2004 at the age of seventy-six.  The late Mr Mitchell served as a pilot in the Royal Australian Air Force from 21 September 1943 to 17 May 1946.  He was engaged in operational service, because he served outside Australia during World War II in Africa, Italy and the Pacific.

3.      Mr Mitchell died from a heart attack, and his death certificate showed the cause of death as myocardial infarct.  He had not previously been diagnosed with or treated for heart disease.  Mrs Mitchell claimed a widow’s pension.  Her claim was refused by the Repatriation Commission on the grounds that the deceased’s death was not war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). The Veterans’ Review Board later affirmed this decision. Mrs Mitchell then applied to this tribunal for review of the Commission’s decision.

Issue before the Tribunal

4.      The issue before the tribunal is whether the late Mr Mitchell’s death was war-caused within the meaning of the VE Act.

Legislative Scheme

5.      Under s 13 of the VE Act, where the death of a veteran was war-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to his or her dependants.

6.      Section 8 of the VE Act provides for when the death of a veteran is taken to be war-caused, and provides relevantly as follows:

“8 War-caused death

(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused, if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”

7.      Where (as in the present case) a veteran has performed operational service, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act.  Those sections provide relevantly as follows:

“120 Standard of proof

(1)Where a claim under Part II for a pension in respect … 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 … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(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.

Note: This subsection is affected by section 120A.”

8.      Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury, disease or death, the reasonableness of an hypothesis is to be assessed by reference to that SoP.  This follows from s 120A(3), which provides:

“(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.”

Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.

9.      Section 196A of the VE Act provides for the establishment of the RMA.  Section 196B of the VE 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.  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 death 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.

Contentions of Applicant

10.     The claim that the veteran’s death was war-caused is based on a contention that a combination of certain factors included in three SoPs gives rise to a reasonable hypothesis connecting Mr Mitchell’s death with his operational service.

11.     The first factor relied upon was factor 5(m) of the SoP concerning ischaemic heart disease, namely Instrument No. 53 of 2003.  This refers to a veteran suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease.  Second, Mrs Mitchell relied upon the SoPs in respect of depressive disorder, being Instruments No. 58 of 1998 and 17 of 2007; factor 6(g) of the latter SoP refers to having a clinically significant psychiatric condition within two years before the clinical onset of depressive disorder.  Thirdly, Mrs Mitchell relied upon the SoPs concerning generalised anxiety disorder, being Instruments No. 1 of 2000 and No. 101 of 2007.  Factor 5(a)(v) of the former SoP refers to experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder, and factor 6(a)(ii) refers to experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder.

12.     The reliance by Mrs Mitchell on a combination of the factors provided for in the SoPs concerning the three conditions in question was based on provisions in each of the SoPs to the effect that if a relevant factor in the SoP includes an injury or disease in respect of which another SoP exists, then the factor in the other SoP applies in accordance with the terms of that SoP (see for example clause 7 in Instrument No. 53 of 2003 in respect of ischaemic heart disease, and McKenna v Repatriation Commission (1999) 86 FCR 144, where the Full Federal Court decided that s 120A(3) of the VE Act allows an hypothesis to be upheld by more than one SoP).

13.     Some reference was also made to Mr Mitchell having suffered post-traumatic stress disorder (PTSD) as a result of his experiences on operational service.  As we understood it, this was advanced as an alternative to generalised anxiety disorder.  The medical evidence before us did not support a diagnosis of PTSD, and for the reasons referred to below, it is unnecessary for us to consider this possible alternative basis of Mrs Mitchell’s claim.

Consideration

14.     Much of the evidence adduced at the hearing related to whether the late Mr Mitchell was suffering from generalised anxiety disorder, or perhaps PTSD, after he returned from operational service, and if so, when the clinical onset of this disorder occurred.  However, as mentioned above, the starting point of the claimed connection between the death of Mr Mitchell and his war service was factor 5(m) of the SoP concerning ischaemic heart disease.  Reference was also made to factor (zd), but that refers to clinical worsening of ischaemic heart disease, and there was no evidence of prior disease which could be said to have been worsened.

15.     Mrs Mitchell’s claim therefore revolves around factor 5(m) of the SoP concerning ischaemic heart disease.  That paragraph provides, in effect, that one of the factors that links ischaemic heart disease with circumstances of a person’s service is suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease.

16.     It was not apparent to us at the outset of the hearing that there was any real issue about the application of that factor; that is, we thought that it had been accepted that the condition of depression had existed for at least five years before Mr Mitchell’s death.  Our assumption arose from a medical report provided by Dr Maxwell in which he said that Mr Mitchell was suffering from depression, and that he had treated him from 1996 to the date of his death in 2004.  However, when Dr Maxwell gave evidence, it became apparent that, first of all, he himself had only started treating Mr Mitchell from 1999 and secondly, that major depressive disorder was not diagnosed until late 2000 or early in 2001, and Dr Maxwell apparently prescribed medication for that condition after that again.  When we became aware of these matters we adjourned the hearing to enable counsel for Mrs Mitchell to investigate whether an earlier diagnosis of depression had been made by one of Dr Maxwell’s partners, or whether Mrs Mitchell wished to produce any further evidence in relation to the clinical onset of the depressive condition, but we were advised that there was no further evidence that could be called on that matter.

17.     What is meant by the concept of the clinical onset of a disease has been referred to in various cases in the Federal Court and in this tribunal.  There is a convenient summary of the relevant principles in the case of Re Demczuk and Repatriation Commission [2005] AATA 1012. In that case, the tribunal reviewed some earlier authorities dealing with the meaning of the concept of clinical onset. One of those cases was Re Robertson and Repatriation Commission (1998) 50 ALD 668, a case decided in 1998 by Senior Member Dwyer. She said that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom, which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

18.     In the present matter the tribunal must, of course, consider the evidence before it, and the evidence before us is that clinical onset was diagnosed late in 2000 or early 2001.  There is no other evidence of symptoms which could have led to the diagnosis earlier than that.  We are mindful that Dr Maxwell was the late Mr Mitchell’s general practitioner, and presumably Dr Maxwell saw either Mr Mitchell or Mrs Mitchell on a reasonably regular basis, and if there had been clinical signs of a major depressive disorder, then that would have become apparent to Dr Maxwell at a date earlier than the date when he diagnosed the condition.  The relevant factor connecting the ischaemic heart disease with the major depressive disorder is not supported by the relevant SoP; that is, the material before us does not fit with any of the factors described in the SoP in respect of ischaemic heart disease.

19.     That means that it is unnecessary for us to consider other issues arising under the SoPs in respect of depressive disorder or generalised anxiety disorder.

20.     We do, however, want to add that we were very impressed by the evidence given by Mrs Mitchell, her son, Simon Mitchell, and the witness, Ms Young.  We are satisfied that they did their best to paint a picture of Mr Mitchell and his characteristics and behaviour during his lifetime.  It was apparent to us that the late Mr Mitchell was a veteran who served his country with distinction during World War II and, indeed, that the war had a significant effect on him.  However, the entitlement of a veteran’s widow to benefits under the VE Act depends on the wording of the Act and in this case on the provisions of the relevant SoP.  In this case, there is no material or evidence before us of the necessary connection required by the relevant SoP to enable us to say that Mr Mitchell’s death was war caused.

Decision

21.     For the reasons given orally at the hearing, the tribunal affirms the decision under review.

We certify that the 21 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G Jarvis, Senior
Member R W Dunne, and Mr S J Ellis, Member

Signed: ...........................................................................
           L. Wunderer  Associate

Date/s of Hearing  29 February 2008

Date of Decision  29 February 2008

Date of publication of these

written reasons  14 April 2008
Counsel for the Applicant         Mr G Hemsley
Solicitor for the Applicant          Mr G Hemsley
Advocate for the Respondent   Mr A Crowe