Orr and Repatriation Commission

[2005] AATA 751

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/328

VETERANS'  APPEALS  DIVISION		)
Re		NORA ORR (ON BEHALF OF THE LATE JOHN ORR)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date8 August 2005

PlaceSydney

Decision The decision under review is affirmed.

....................[sgd]...............

Ms N Bell
  Senior Member

VETERANS’ AFFAIRS – Wife of Deceased Claimed that her Husband’s Death was War-Caused – Allegation that Veteran Died from Cerebrovascular Dementia – Medical Evidence Points to Alzheimers Disease as Cause of Death – Deceased Does not Meet Statement of Principles for Alzheimers Disease – Death not War-Caused

Veterans’ Entitlement Act 1986

Statement of Principles No17 of 2001

REASONS FOR DECISION

8 August 2005 Ms N Bell, Senior Member

1.      Mrs Nora Orr is the wife of the late John Orr.  Mr Orr died on 31 December 2001.  Mr Orr served in the Australian Army between 15 June 1942 and 29 December 1944.  This is operational service for the purposes of the Veterans’ Entitlement Act 1986 (“the Act”).

2.      Mrs Orr claimed a pension on 11 January 2002, contending that her husband’s death was service related.  The Repatriation Commission refused her claim and that decision was affirmed by the Veterans’ Review Board.  Mr Orr had suffered from coronary artery disease and this condition had been accepted as war-caused.  Mr Orr had been in receipt of a pension at 90 per cent of the General Rate.

3.      In accordance with section 34B of the Administrative Appeals Tribunal Act 1975 and with the consent of parties, this application was considered on the papers and no hearing was held.

4.      In this application Mrs Orr contends that her husband died of cerebrovascular dementia and hypothesised that this condition was connected to his service by way of his service-related hypertension, in turn brought on by his service related smoking and alcohol consumption.

5.      The hypothesis put by Mrs Orr relies on the cause of her husband’s death being cerebrovascular dementia.  The Repatriation Commission contends that the cause of Mr Orr’s death was Alzheimer’s disease.

6.      The first question for me to consider, therefore, is the cause of Mr Orr’s death or the diagnosis of the condition causing his death.  I must decide this question to the standard of reasonable satisfaction. 

7.      The next question for me to determine is whether that “kind of death” was war-caused.  The applicable standard of proof for that question is that of reasonable hypothesis.  If a Statement of Principles exists in relation to the condition that was the cause of Mr Orr’s death then, in order for any hypothesis of war-causation to be reasonable, it must conform with a factor set out in the applicable Statement of Principles (SoP).

cause of death

8.      The medical certificate of cause of death, completed by Dr F Antonio, notes “dehydration” as the disease or condition directly leading to death, and “end stage dementia” as the antecedent cause. 

9.      Dr D Serisier, Mr Orr’s treating Neurologist, stated in a letter to Sydney Legacy dated 26 August 2002, that he was treating Mr Orr for Alzheimer’s disease.

10.     Associate Professor Corbett, Neurologist, in a report dated 7 June 2004, stated that Mr Orr’s dementing illness was consistent with Alzheimer’s disease and further stated that there were no obvious episodes of sudden deterioration and no associated stroke.  He stated that Mr Orr’s CT scan was reported as demonstrating cerebral atrophy and no comment was made of areas of cerebral infarction or subcortical vascular disease.  He stated that Mr Orr’s pattern of cognitive impairment is typical for Alzheimer’s disease.  Associate Professor Corbett also made a number of comments to the effect that hypertension, which was suffered by Mr Orr, is well documented as being associated with later life dementia.  However, as will be seen later, hypertension does not figure as a factor in the SoP concerning Alzheimer’s disease.

11.     In a further report dated 27 July 2004, Associate Professor Corbett repeated his conclusion that on the balance of probabilities Mr Orr suffered from Alzheimer’s disease.  He further noted that there is no documentation in Mr Orr’s history of features to indicate cerebrovascular disease and that although a vascular component to his dementia is possible given his hypertension, it is not probable.  Associate Professor Corbett also noted that it is probable that Mr Orr’s excessive alcohol consumption had a direct effect to increase his susceptibility to later life dementia.  He considered that cerebral atrophy and impaired memory as demonstrated in Mr Orr are consistent with both Alzheimer-type dementia or dementia related to excessive alcohol consumption.  However, as with hypertension, alcohol consumption is not a factor in the SoP concerning Alzheimer’s disease and, given Associate Professor Corbett’s conclusion that Mr Orr was most likely to have had Alzheimer’s disease, rather than any other type of dementia, this opinion does not assist Mrs Orr’s hypothesis of war causation.

12.     Professor J McLeod, Neurologist, in a report dated 9 November 2004, noted that a diagnosis of Alzheimer’s disease had been made by Dr Serisier and stated:

“the slowly progressive course of his dementia with cognitive impairment, impairment of constructional tasks, CT brain scan demonstrating defuse cerebral atrophy and lack of focal neurological signs or any other better explanation were all consistent with this diagnosis”. 

He also considered the death certificate to be an accurate reflection of the cause of death.  Professor McLeod considered the definition of Alzheimer’s disease in the relevant Statement of Principles and concluded that Mr Orr did have a clinical cause characterised by an insidious onset of dementia symptoms including intellectual, cognitive and social decline and functional memory impairment which gradually progressed and was irreversible.  He also noted that there was no history of Mr Orr having had little strokes or cerebral infarction and there appears to be no evidence of cerebrovascular disease on the CT scan.  Professor McLeod also noted that there is evidence in medical literature that hypertension and alcoholism are associated with Alzheimer’s disease, although not causative.

13.     Professor M O’Rourke, Cardiologist, in a report dated 4 February 2004 stated that there is no evidence that Mr Orr’s death was due to or hastened by his accepted disability of coronary artery disease.  He also stated that coronary artery disease does not cause dementia which instead is caused by a cerebral problem. 

14.     SoP No 17 of 2001 defines “Alzheimer’s disease” as:

“A dementia that is characterised histopathologically by an abundance of senile (neuritic) plaques and/or neurofibrillary tangles in neocortical regions excluding the hippocampus and subiculum; and characterised clinically by an insidious onset of dementia symptoms including intellectual, cognitive, and social decline in function and memory impairment which progresses gradually and is irreversible.”

15.     This definition accords with the opinions of medical experts above.

16.     I am reasonably satisfied on the basis of the above evidence that the dementia which was the cause of Mr Orr’s death was end stage dementia due to Alzheimer’s disease.

17.     The relevant Statement of Principles is SoP No 17 of 2001 which concerns Alzheimer’s disease.  In that SoP the factors that must as a minimum exist  before it can be said that a reasonable hypothesis has been raised connecting death from Alzheimer’s disease with the circumstances of Mr Orr’s service are:

“a)  suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease; or

b)inability to obtain appropriate clinical management for Alzheimer’s disease.”

18.     There is no material before me which points to Mr Orr having suffered from a head injury, which was related to his operational service nor is there any material that points to any inability to obtain appropriate clinical management for his Alzheimer’s disease, and I note, in this respect, that the onset of Alzheimers disease was long after Mr Orr’s service. 

19.     It follows that Mr Orr’s Alzheimer’s disease, which was the cause of his death, was not war-caused.

decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell

Signed:         ............[Linda Blue].......................................
  Associate

Date of Hearing  Matter heard on the papers 30 June 2005
Date of Decision  8 August 2005
Representative for the Applicant    Mr Rymer
Solicitor for the Respondent     Department of Veterans’ Affairs