Mulholland and Repatriation Commission
[2001] AATA 407
•14 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 407
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/577
VETERANS' APPEALS DIVISION)
Re: ADELA MARY MULHOLLAND
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 14 May 2001
Place: Melbourne
Decision:The decision under review is set aside. The Tribunal substitutes a decision that the death of the veteran was war-caused pursuant to section 8 of the Veterans' Entitlements Act 1986.
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — widow's pension — veteran suffered a series of mini-strokes — cerebrovascular accident — whether Statements of Principles concerning Hypertension must be satisfied — whether smoking at least five cigarettes per day for at least five years before clinical onset — cessation of smoking — changing history provided with respect to veteran's smoking habit
Veterans' Entitlements Act 1986 ss.8, 119, 120
Statement of Principles
Instrument Nº 123 of 1996 concerning Parkinson's Disease and Parkinson's Syndrome
Instrument Nº 8 of 1999 concerning Cerebrovascular Accident
Instrument Nº 25 of 1999 concerning Hypertension
Repatriation Commission v McKenna (1998) 52 ALD 72
McKenna v Repatriation Commission (1999) AAR 70
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
REASONS FOR DECISION
14 May 2001 Mrs H.E. Hallowes, Senior Member
On 17 May 1999 the Repatriation Commission determined that the death of Mr Mulholland (the veteran) from Parkinson's disease was not related to his eligible war service between 15 December 1941 and 10 December 1945, applying subsection 120(4) of the Veterans' Entitlements Act 1986 ("the Act"). The veteran's death certificate recorded that he died on 9 April 1992 after suffering pneumonia for four days. He had been diagnosed as suffering Parkinson's disease five years earlier.
The decision of the Repatriation Commission was affirmed by the Veterans' Review Board ("the VRB") but, as well as finding that the veteran had not suffered Parkinson's disease before service, and that the only relevant factor under Statement of Principles ("SoP") Instrument Nº 123 of 1996 concerning Parkinson's Disease and Parkinson's Syndrome (5(b)) "inability to obtain appropriate clinical management for Parkinson's disease and Parkinson's syndrome" could therefore not be satisfied, the VRB also considered SoP Instrument Nº 8 of 1999 concerning Cerebrovascular Accident as it had before it a medical report from Dr W. Longworth, the veteran's general practitioner, who advised on 26 October 1999:
. . . I have had a look through Mr. Mulholland's history and it would appear he developed some tremor back in about 1990, which was thought to be of a Parkinsonian type. He did see a neurologist, Dr. Roberts at that time that didn't actually label it as Parkinson's, but did feel there was some features of Parkinson's disease. There was actually a comment made in his letter that the Parkinson's disease diagnosis was not indicated to the patient because he and his wife had also indicated that he is very inclined to be extremely anxious and become depressed very easily. It was therefore felt to indicate that the tremor was probably an age related tremor and if it became worse, that he could have some medication for it.
However, things continued on and he did have a CT examination of his brain which did suggest some irregularity in the white matter suggestive of atherosclerotic changes with multiple cerebral infarcts and probably has multiple infarct disease and he was actually started on some medications for Parkinson's disease and in correspondence from Dr. Vosalis and geriatricians through Manvantara, it would suggest that Mr. Mulholland indeed had a diagnosis of Parkinson's disease, presumably from his multi-infarct disease.
The VRB was reasonably satisfied that the veteran "suffers cerebrovascular accident" with a clinical onset in 1991. The VRB noted that factor 5(a) of Instrument Nº 8 of 1999 concerning Cerebrovascular Accident required a link through hypertension and the VRB therefore considered SoP Instrument Nº 25 of 1999 concerning Hypertension, the veteran having been diagnosed with hypertension in the 1960s. However, the VRB was reasonably satisfied that there were no risk factors in the SoP concerning Hypertension which would connect the veteran's service with his disease. The VRB was also satisfied that the smoking risk factor (factor 5(k)(i)) was not met.
At the hearing Mr E. Nyhof, advocate, with the Department of Veterans' Affairs, who appeared for the Repatriation Commission, accepted that the veteran had suffered a number of mini strokes and therefore that disease was the disease considered by the Tribunal and whether it was connected to the veteran's eligible war service. It was agreed that the relevant SoP was Instrument Nº 8 of 1999 concerning Cerebrovascular Accident, the SoP in effect when the Repatriation Commission determined the matter.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing. Mr G. Giampiccolo, solicitor, appeared for Mrs Mulholland, the veteran's widow, at the hearing. It was his contention that Mrs Mulholland was entitled to be paid widow's pension under section 8 of the Act.
The Tribunal rejects the contention put by Mr Giampiccolo on behalf of Mrs Mulholland, that the SoP concerning Hypertension need not be satisfied to complete the link between the veteran's cerebrovascular accidents and his war service, applying factor 5(a) of Instrument Nº 8 of 1999, which provides:
5The factors that must exist before it can be said that, on the balance of probabilities, cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person's relevant service are:
(a)suffering from hypertension before the clinical onset of cerebrovascular accident; or
. . .
The Tribunal must apply what was said by the Federal Court in Repatriation Commission v McKenna (1998) 52 ALD 72 at first instance, and on appeal in McKenna v Repatriation Commission (1999) 29 AAR 70, the Full Federal Court stating, at page 77:
. . . In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts.
We can see no difficulty in the way of interpreting s 120A(3) of the Act as allowing a hypothesis to be upheld by more than one Statement of Principles.
Mr Giampiccolo also referred the Tribunal to factor 5(k) of Instrument Nº 8 of 1999, (i) and (iii), which provide:
5.The factors that must exist before it can be said that, on the balance of probabilities, cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person's relevant service are:
. . .
(k)for cerebral ischaemia only,
(i)smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
. . .
(iii)the presence of a serum total cholesterol level equal to or greater than 8 mmol/L before the clinical onset of cerebrovascular accident; or
The evidence before the Tribunal with respect to the veteran's smoking habit was far from clear. Mrs Mulholland told the Tribunal that she has had difficulties with her memory since 1982 when, following treatment in a hospital, she was in intensive care for three days. The Tribunal has taken into account these difficulties under subsection 119(1) of the Act. Mrs Mulholland's representative before the VRB advised the VRB that the veteran was a wartime smoker only (exh 2). Mrs Mulholland had said that the veteran gave up smoking shortly after discharge in 1945 and that he had never been a heavy smoker. She said however that the veteran was diagnosed with anxiety neurosis (exh 2) during service and she also said that he continued to suffer from depression after service. Mrs Mulholland also outlined a number of family illnesses which she said "didn't help".
In preparing the matter for hearing before the Tribunal Mrs Mulholland had found a photograph of the veteran with a cigarette in his hand which, she said, triggered her memory such that the history she gave to the Tribunal of the veteran's smoking habit was different to that which she had given before the VRB. She recalled that her father and later her brother had come to live with her and the veteran and she said that both her father and brother were heavy smokers. Other members of the family also smoked. She told the Tribunal she took little notice of who was smoking, but she recalled that the veteran had bad depression in 1984 and 1985 and she had a recollection of him saying that his cigarettes would have to go at that time. She explained to the Tribunal that she always related smoking to cancer and, as the veteran had not suffered from cancer, his smoking habit had not come to mind when she lodged her claim for pension, nor during the hearing before the VRB. Mrs Mulholland also had a recollection of the veteran buying cigarettes in Singapore in the early 1980s and, as she retained one of the containers, she thought that he had not given all the cigarettes away. It was now her evidence that the veteran had given up smoking in 1984 during a trip to the Murray River immediately after his retirement from work. He had tried to give up smoking on several earlier occasions. In a letter to Mr Nyhof, which he received on 15 September 2000, Mrs Mulholland wrote that she could not recall when the veteran ceased smoking. She thought that the photograph, which showed the veteran smoking, was taken in approximately 1955. Other statements provided by Mrs Mulholland point to her assuming that the veteran smoked as both her father and brother did.
Mr R. Williams, Mrs Mulholland's son-in-law, told the Tribunal that he married one of Mrs Mulholland's daughters in December 1971. He saw the veteran frequently. Mr Williams recalled that the veteran was a smoker until 1986. He could remember the veteran bringing back cigarettes from overseas and he said that the veteran had smoked in mid-1983 at a family christening, and also at his daughter's funeral. He thought that the veteran had smoked after retirement.
Mr J. Tresidder, who was a friend and a work colleague of the veteran, remembered sharing a cigarette with him, at the veteran's daughter's funeral in May 1982. He recalled him smoking at work which, he described, as a "smoking environment".
Mrs Mulholland's sister, Mrs Carey told the Tribunal that she saw Mrs Mulholland and the veteran regularly, and that the veteran had smoked in her presence in the late 1950s. She had a definite memory of the veteran smoking in 1982, but described him as being "smoke free" by 1985. Ms L. Dumsday, one of the applicant's daughters, wrote to the Tribunal on 22 August 2000 to advise that she could recall her father smoking as late as April 1985 at his retirement party (exh A). As Mrs Mulholland is now agreed that the veteran retired in 1984, the Tribunal is satisfied that Mrs Dumsday has made an error with respect to the year her father retired.
The Tribunal had before it Dr Longworth's clinical notes and file with respect to the veteran. He appears to have commenced treating the veteran in 1976. His notes are very hard to read. There is no obvious reference to the veteran being a smoker. Dr Longworth's file with respect to the veteran included an X-ray report dated 14 May 1984, which stated that the veteran's lung fields were clear. He was described as a non-smoker in a medical report by Dr L. Roberts in February 1991. What is of particular concern to the Tribunal is a report from the Shepherd Foundation, dated 24 May 1976, where the veteran is described as having never smoked. The Tribunal also had before it a file note dated 14 December 2000, made by Mr K. Herman, assistant director, Review Section, Department of Veterans' Affairs, who apparently spoke to Dr Longworth to try and clarify when the veteran had ceased smoking. Mr Herman recorded that Dr Longworth could not recall if the veteran was a smoker, ". . . he could not say whether he was or was not" (exh 4).
Mr Giampiccolo conceded that, if Instrument Nº 26 of 1999 concerning Hypertension was relevant to the application, the factors in that SoP could not be met. The Tribunal is therefore satisfied that factor5(a) of the SoP concerning Cerebrovascular Accident (Instrument Nº 8 of 1999) is not satisfied to connect the veteran's death from cerebrovascular accident with the circumstances of his service.
Turning to factor 5(k)(i), Mr Giampiccolo put to the Tribunal that, although the veteran's cerebrovascular accident was first diagnosed in 1991, he may have suffered a series of multiple cerebral infarcts as far back as 1984. In particular, Mr Giampiccolo referred to a medical report to Dr Longworth from Dr V. Ahern who reported on 28 May 1984 that neurological examination of the veteran revealed mild right-sided weakness although she had not labelled it as a stroke "to him".
In Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428 the Tribunal addressed the issue of "clinical onset" at paragraph 61 and following, as follows:
(61) The term "clinical onset" is not defined in the SoPs. The tribunal has considered its meaning in a number of other decisions namely Re Saunders and Repatriation Commission (AAT, Nº 12180, 3 September 1997, unreported), Re Videan and Repatriation Commission (AAT, Nº 12627, 17 February 1998, unreported) and Re Robertson and Repatriation Commission (1998) 50 ALD 668. In Re Robertson the tribunal, at ALD 670, quoted Dr King's evidence as to his understanding of the term "clinical onset". He said:
"Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph."
In Re Robertson the tribunal at ALD 670, explained what, in its view, constituted 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 the time.
(62) We consider that the term "clinical onset" means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition. As Dr King said in Re Robertson, the term "clinical onset" refers to the time when a doctor or patient becomes aware of symptoms which either then, or at a later stage, a doctor considers to have been due to the relevant condition. . . . .
Applying the decision of the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the symptom must satisfy the medical scientific standard prescribed by the SoP. Instrument Nº 8 of 1999 defines "cerebral ischaemia" as:
. . . a reduction or interruption of blood supply to an area of the brain which usually presents as a transient ischaemia attack (TIA) or stroke;
and "cerebrovascular accident" means:
. . . cerebral ischaemia or intracerebral haemorrhage, attracting ICD-9-CM code 431, 433.01, 433.11, 433.21, 433.31, 433.81, 433.91, 434.01, 434.11,434.91, 435, 436, 437.1 or 674.0.
In response to Mr Giampiccolo's submission to the Tribunal that, in light of Dr Ahern's letter (paragraph 14 above), the clinical onset of the veteran's cerebrovascular accidents may have been 1984, Mr Nyhof put to the Tribunal that a medical practitioner would not have been able to diagnose the veteran's cerebrovascular accident until the veteran underwent CT scan in 1991. Dr Ahern went no further in her letter of May 1984 than to state that the veteran's symptoms "suggests the possibility of a previous (L) CVA" (exh A). The veteran was apparently to be rechecked in "a few weeks" but there appears from the clinical notes to have been no follow up. When the veteran was seen in June 1984 it was for depression and in July he was worried by backache. There is no further report of right-sided weakness. In December 1990 it was noted that he had a left hip replacement on 16 October 1990. It was not until 24 January 1991 that he appears to have been referred to a neurologist for left arm and leg weakness and the Tribunal finds, on the balance of probabilities, that the veteran did not have symptoms which would enable a medical practitioner to diagnose cerebrovascular accident until 1991, although at that time it appears a diagnosis of Parkinson's disease was pursued. It appears from a letter dated 21 May 1991 (exh 1) that Dr D. Orchard, an intern to Dr Voselis, wrote to Dr Longworth outlining a history he had obtained from the veteran that the veteran had problems with his left leg which the veteran dated from a fall off a ladder, rather than being due to cerebral ischaemia, the fall having apparently occurred in October 1985, if the history in a further letter from Mr R. Simm, orthopaedic surgeon, dated 27 February 1987, also amongst the clinical notes (exh 1), is correct. Mr Simm noted that the veteran was in good general health at that time. Dr Orchard recorded in 1991 that the veteran had a four-year history of progressive Parkinson's disease.
To satisfy factor 5(k)(i) of Instrument Nº 8 of 1999 and for Mrs Mulholland to succeed in this application, the Tribunal must be satisfied that the veteran was smoking at least five cigarettes per day for at least five years some time before 1991 and also, because the veteran ceased smoking, the clinical onset of his cerebral ischaemia must have occurred within 10 years of him ceasing smoking. Mr Nyhof, having noted that Mr Herman had conceded that the veteran's smoking was connected with his service, that matter was no longer in issue before the Tribunal. Mr Nyhof expressed his concern that the smoking history provided by Mrs Mulholland seemed to have changed once she became aware of the importance of the veteran's smoking to any entitlement she may have under the Act. He described the evidence with respect to the veteran's smoking habit before the Tribunal as self-serving.
The Tribunal has found that the clinical onset of the veteran's cerebral ischaemia was in early 1991. He had ceased smoking by then and the Tribunal must decide whether or not the veteran was still smoking in 1981, if at all. In January 2000, when she gave evidence to the VRB, it was Mrs Mulholland's recollection that the veteran gave up smoking shortly after discharge. She has since found a photograph of the veteran with a cigarette in his hand which she dated as approximately 1955. Her father was living with them during the 1960s, and her brother until approximately 1980. She described them both as heavy smokers. Her daughters, the last of whom was born in the mid-1950s, smoked, so it appears that cigarettes were smoked in the household until at least the 1970s. Mrs Mulholland thinks that the veteran kept some of the cigarettes he bought in Singapore and she can recall him having cigarettes in his possession in 1984 when they went on their trip to the Murray River shortly after he had ceased work. Other witnesses recalled the veteran smoking on family occasions until 1984.
There is an explanation as to why Dr Roberts recorded the veteran as a non-smoker in 1991. There is no dispute that he was not smoking then. The Tribunal is satisfied that the description of the veteran as never having smoked by the Shepherd Foundation is probably an error as Mrs Mulholland has always contended that the veteran commenced smoking during service. However, that record does cast doubt on the veteran being a smoker when he was examined at the Shepherd Foundation in 1976. Taking into account the beneficial nature of the legislation and section 119 of the Act and considering all the material before the Tribunal, it is reasonably satisfied that the veteran smoked cigarettes, at least intermittently, until his retirement from work in 1984. The clinical onset of his cerebral ischaemia therefore occurred within 10 years of the cessation of his smoking.
Turning to the issue as to whether the veteran smoked at least five cigarettes per day for at least five years before the clinical onset of his cerebral ischaemia, the Tribunal notes that the veteran appears to have smoked at work. Mr Tresidder gave evidence to that effect. Others recall him smoking on family occasions. The fact that Mrs Mulholland's father and brother were both heavy smokers may have distracted her from thinking about the number of cigarettes the veteran may have smoked. She recalled him smoking when he came home during service. Considering the period of time since the veteran started smoking during service and, despite Mr Nyhof's contention that, if the veteran had periods when he had given up smoking that the causal link between smoking and service would be broken, the Tribunal has reached the conclusion on the balance of probabilities, that the veteran did smoke at least five cigarettes per day for five years at some time before the clinical onset of his cerebral ischaemia and that the death of the veteran was war-caused because the material before the Tribunal raises a connection between the death of the veteran and his service. Other factors in Instrument Nº 8 of 1999 provide that something must have occurred "immediately before the clinical onset" ((5)(b), (d), (e) and (j)), but there is no such requirement under factor 5(k)(i). Mr Nyhof did not put to the applicant that, if the veteran had ceased smoking at some earlier date, he must have resumed smoking for some other reason to substantiate his contention that there may be a break in the causal link between the veteran's smoking habit and his service. Although the Tribunal is satisfied that, during the early 1980s, before the veteran gave up smoking entirely, he probably only smoked on odd occasions, it is more probable than not that, for a period of five years shortly after service, he was smoking five cigarettes a day for at least five years.
The Tribunal will therefore set aside the decision under review and substitute a decision that the death of the veteran was war-caused.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 04.04.01
Date of Decision: 14.05.01
Solicitor for the Applicant Mr G. Giampiccolo, Messrs Giampiccolo & CoSolicitor for the Respondent Mr E. Nyhof, Departmental Advocate
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