Perrin and Repatriation Commission - [2001] AATA 26

DECISION AND REASONS FOR DECISION [2001] AATA 26

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/767

VETERANS' APPEALS DIVISION          )
           Re      Marjorie Perrin
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr JD Campbell

Date22 January 2001
PlaceSydney

Decision      (a)      the late veteran had a condition of chronic airways limitation; and (b)        this condition of chronic airways limitation was a war caused disability; and (c) this war-caused disability made a contribution to the death of the late veteran; and (d)           the Applicant is entitled to a widow's pension with date of effect being 21 April 1997.
  ……………………….
  Member
CATCHWORDS
Veterans' entitlement and widow's pension – death of veteran – cause of death – chronic obstructive airways disease – issue of contribution

Veterans' Entitlement Act 1986 ss 8, 120, 120A, 196B

Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Bendy (1989) 10 AAR 323
Repatriation Commission v Hughes (1990) 13 AAR 34
Henry v Repatriation Commission (1992) 29 ALD 289
Asquith v Repatriation Commission (1989) 18 ALD 479

REASONS FOR DECISION

Dr JD Campbell

Mrs Perrin ("the Applicant") in this matter seeks review of the decision of the Repatriation Commission ("the Respondent") dated 31July 1997 which found that the death of her late husband, Mr Sydney Perrin, was not related to service and subsequently her claim for a widow's pension was refused. This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 9 February 1999.
A hearing was held before the Tribunal on 11 September 2000 at which the Applicant was represented by Mr Sherlock, an advocate from the Veterans' Advocacy Service. The Respondent was represented by Mr Wallis, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following material was placed in evidence before the Tribunal:
T1–T13, pp1 –118 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit A1     Applicants letter dated 19 October 1999.
Exhibit A2     Statement of Applicant dated 16 November 1999.
Exhibit A3     Medical Report by Dr Rodriguez dated 18 October 1999.
Exhibit A4     Advice by Dr Green re Applicant dated 31 October 1999.
Exhibit A5     Applicants Statement of Facts and Contentions dated 12 November 1999.
Exhibit R1     Clinical notes of Dr Dunn dated 8 February 2000.
Exhibit R2     Clinical notes of Calvary Hospital dated 23 March 2000.
Exhibit R3     Medical report of Dr Breslin dated 1December 1999.
Exhibit R4     Respondents statement of facts and contentions dated 7 April 2000.

ISSUES

The relevant issues in this matter are:
(a) whether the late veteran suffered from chronic airflow limitation due to chronic bronchitis or emphysema, and whether this condition was a war caused disability; and if so
(b) whether this war caused disability cause or contribute to the death of the veteran.

LEGISLATION

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 8(1), 120(1), (3), (4), 120A and 196B.
BACKGROUND
The Applicant lodged a claim for a widow's pension on 21 February 1997. The claim related to the death of her husband, Mr Sydney Perrin ("the late veteran") who died at Calvary Hospital on 3 July 1998. The death certificate cited a brain tumour (glioma) as the cause of death. Her claim was rejected on 31 July 1997 (T6). Following further enquiries by the Applicant, an amended death certificate was issued by the Registry of Births, Deaths and Marriages on 16 June 1998, citing as an additional cause of death chronic obstructive airways disease. The matter was reviewed by the VRB and in a decision dated 9 February 1999 death of the late veteran was found not to be related to his service (T12).
ARGUED FACTS AND ISSUES
Both parties agree on the following facts and issues:
(a) that the late veteran had the following conditions accepted as war caused disabilities:
(i) Threadworm Infestation;
(ii) Functional Dyspepsia;
(iii) Anxiety State with Depression;
(iv) Haemorrhoids;
(b) that the late veteran had operational service from 20 April 1942 to 11 January 1944; and
(c) that the date of effect is 21 April 1997, if the Applicant is successful in her appeal.

APPLICANTS EVIDENCE

The Applicant informed the Tribunal that she met her late husband in 1950 and married him in 1959, being the second marriage for both. The Applicant said that her late husband had been a dairy farmer before the war, with a number of young children.
In relation to the late veterans' smoking, the Applicant stated that he was a very heavy smoker at the time they first met, smoking at least 60 cigarettes per day. The Applicant further stated that he continued to be a very heavy smoker until 1979 or 1980, when Dr Alford indicated that he would be unwilling to treat the late veteran if he did not stop smoking.
In further evidence, the Applicant stated that the information about her husband's smoking pattern prior to their initial meeting in 1950 was derived from conversations with the late veteran. As a consequence she was able to state that her husband was a non-smoker prior to his service; being a fastidious man, he did not think it appropriate to smoke and milk cows by hand. He started to smoke in Darwin, and while generally not speaking much about his war experiences, he did mention the bombing raids in Darwin.
The Applicant stated that her late husband was discharged with nervous dyspepsia and emotional problems and that after leaving the service he had four bouts of pneumonia, one of which was prior to the marriage, and three after. Further she stated that in later years he used a Ventolin spray to assist with his breathing difficulties, which seemed to get progressively worse. In 1988 he was ill for three weeks in bed, during which time a nebuliser was used, and a second opinion was obtained resulting in a CAT Scan, the diagnosis of a brain tumour, his admission to Port Macquarie Hospital and later transfer to Prince Henry Hospital for neurosurgery.
In response to questions from the Respondent, the Applicant said that in November 1987 they had travelled to New Zealand. There had been no changes in the late veteran's behaviour, but he had been unwell for three months prior to his final illness, and there were times when she had observed him sitting under a tree gasping, and finally, on a day she went to tennis, he did not get out of bed and remained there for three weeks prior to his hospital admission in June 1988.
MEDICAL EVIDENCE
Dr Dunn
The clinical notes from Dr Dunn include a note to the Respondent stating that within their file:
"I would note that there is evidence of acute respiratory infection but not of long standing respiratory disease." (Exhibit R1, p11)

At page four of Dr Dunn's clinical notes, there is a letter to Dr Dunn from Dr Epstein, a consultant physician dated 14 June 1985 in which it is stated:
"He had known chronic obstructive airways disease. He was taking bibramycin, ventolin and brondecon." (Exhibit R1, p4)

Through June 1984 to December 1984 there is evidence of the late veteran being treated for flu on two occasions and bronchitis on one occasion, requiring antibiotics and treatment for cough on each occasion (Exhibit R1, pp19-20). In May 1985 the late veteran was again treated for flu with antibiotics and cough medication. In June 1995 the late veteran was treated for acute asthma, was hospitalised and was treated with antibiotics, ventolin inhaler and cough medication as well as Bricanyl, with lung function tests showing a reduced FEV1 (forced respiratory volume) of 1.47 – which is noted as being 66 per cent (Exhibit R1, p23). Further evidence of mild upper respiratory tract infection in August 1985 (p24) and commenced on prednisolone 5mgs dosage daily in October 1985 for polymyositis rheumatica (p26). A further episode of cough is noted in mid February 1986 with a repeat of lung function tests and treatment with vibramycin, brincanyl and ventolin. In late February 1986 the late veteran suffered further respiratory difficulties, requiring further antibiotics and an increased dose of prednisolone, which was decreased over the ensuing month to 1mg twice daily. In June 1986 the late veteran was noticed to be a little cyanosed, and in August 1986 he had a further episode of flu. Because of increased muscular pain his dosage of prednisolone was increased in late 1986, but decreased again in the early months of 1987, and was again increased in mid 1987 and varied over the next 12 months on the level of muscular pain and well being. The late veteran suffered from respiratory infections in September and October 1987, prior to a continuance of his complaint of muscular pains and bad flu in early May 1988, which lingered and eventually a diagnosis of a brain tumour was made after a CAT Scan in early June 1988 (Exhibit R1).
Dr Rodriguez
Dr Rodriguez, a specialist anaesthetist and a specialist in palliative care stated, in a report dated 18 October 1999, that as a consequence of reviewing the late veteran's medical file at Calvary Hospital the following matters were evident:
(a) the diagnosis of chronic obstructive airways disease is documented in the medical record and the referring letter from Prince Henry Hospital; and
(b) there is ample documentation in the notes of delirium, confusion and disorientation which could be worsened by hypoxia secondary to the emphysema.
The Tribunal notes that Dr Rodriguez did not attend to the late veteran during his final illness and it is her opinion the obstructive airways disease would have contributed to the late veteran's death. Dr Rodriguez wrote to both the Respondent and the Registry of Births, Deaths and Marriages concerning her opinions, with the latter issuing an amended death certificate noting chronic obstructive airways disease as a cause of death (T12, p103).
In written evidence to the Tribunal, Dr Rodriguez stated that she was the clinical superintendent at Calvary Hospital at the time she undertook her research into this matter; the late veteran was referred to Calvary for his terminal care; that he was unable to take his ventolin and becotide; that blood gases are not done routinely in a palliative care institution and his delirium and confusion could have arisen both from his hypoxia and his brain tumour. Further it was noted that he did not respond to his steroid therapy and that he required heavy sedation.
Clinical notes from Prince Henry / Calvary Hospitals
In the clinical notes from Prince Henry Hospital, it is clearly recorded that the late veteran had a history of emphysema, asthma and four episodes of pneumonia; that his lungs were clear on admission, and that he was agitated and confused, and this varied in level prior to his operation. Post-operatively his confusion and agitation increased, but again became variable in degree of confusion, agitation and aggression (T11, pp51-91).
In the discharge documentation from Prince Henry to Calvary Hospital it is clearly stated that the only relevant past history was chronic obstructive airways disease (T11, p50) and this was noted in the admission notes at Calvary Hospital. Further the clinical notes from Calvary Hospital demonstrate a continued deterioration with requirement for significant sedation and restraint coupled with his variable co-operation in taking oral medication, and the need for oxygen on the afternoon of 3 July 1988 until his death in the evening of 3 July 1988 (Exhibit R2).
Dr Breslin
In a medical report dated 1 December 1999, Dr Breslin, a consultant respiratory physician, states the following opinion as a consequence of having reviewed particular background papers relating to the late veteran:
"I can find no evidence that Mr Perrin's airways disease materially contributed to his death. He had a very high grade brain malignant tumour with much irritability, confusion and disorientation and died very quickly as a result of that brain tumour. There was no evidence that his chest was a problem during his terminal illness and there is no evidence in any of the notes during that terminal illness of chest symptoms or problems with his chest directly. Certainly he was disorientated and semi-conscious for most of the time but there is absolutely no comment made that his chest was a clinical problem, and no material evidence out forward to suggest that his chest was in any way contributing to his terminal illness. Chest disease was not on the initial Death Certificate. Blood gases were never performed, as far as I can see from the notes, and his chest examination was always normal in his terminal illness. I can find absolutely no evidence linking his chest with his terminal illness and all the evidence points to the fact hat he had a very aggressive, highly malignant brain tumour which caused his death within a very short space of time following diagnosis, The is a very usual setting for death from a brain tumour. No reasonable hypothesis can be made linking his chest disease with his death or materially contributing to it in any way and I consider his death to be due to the primary brain tumour and not to have been materially contributed to in any way from his lung disease. He would have died as rapidly whether or not he had lung disease and his lung disease played no part in his death." (Exhibit R3)

submissions
The Applicant

The advocate for the Applicant submitted that the late veteran had a war caused smoking habit which was a relevant factor in the causation of the late veteran's chronic airflow limitation due to chronic bronchitis or emphysema. It was this war caused disability of chronic airflow limitation which made a contribution to the death of the late veteran. To support the contention the Applicant relies upon the various clinical notes which indicate the existence of a chronic obstructive airways disease, the evidence of the Applicant and the opinion of Dr Rodriguez.
The Respondent
The Respondent contends that the chronic obstructive airways disease from which the late veteran is alleged to have suffered, did not contribute to nor aggravate the primary cause of death. To support his contention the Respondent relies upon the opinion of Dr Breslin.
consideration and findings
This matter, in the Tribunal's view, has evolved into a complex issue as a consequence of particular clinical material being less than detailed as regards the clinical description of the late veteran's circumstances. The Tribunal recognises that this may have occurred as a consequence of the dominance of the dominant clinical condition, once diagnosed. As a consequence of the Tribunal's review of the Applicant's evidence and the various clinical notes of Dr Dunn, Prince Henry Hospital, Hastings District Hospital, Calvary Hospital and the opinions of Drs Rodriguez and Breslin and the two death certificates, the Tribunal makes the following findings of fact:
(a) that for a number of years prior to his final diagnosis of brain tumour and admission to hospital in June 1988, the late veteran suffered intermittently from respiratory tract infection and a cough for which he was treated with antibiotics, bricanyl on occasions, ventolin inhaler, becotide inhaler and prednisolone, as well as having recorded a forced expiratory volume in one second of less than 1.57 on three occasions and a ratio of FEV1 to forced vital capacity of between 66 per cent and 72 per cent on three occasions (Dr Dunn's notes);
(b) that in June 1985 Dr Epstein, a consultant physician, stated that the late veteran "had known chronic obstructive airways disease" (Exhibit R1, p4);
(c) that the letter of referral from Hastings District Hospital to Prince Henry Hospital dated 4 June 1988 (T11, p41), the clinical notes of Prince Henry Hospital (T11, p54), the clinical discharge summary of Prince Henry Hospital dated 22 June 1988 (T11, p50) and the clinical notes of Calvary Hospital (Exhibit R1) all nominate that the late veteran suffered from and was being given medication for chronic obstructive airways disease;
(d) that the late veteran commenced smoking whilst on operational service in Darwin and that a smoking habit was well developed by the time he left the service in 1944 (Applicant's evidence);
(e) that the late veteran's dominant diagnosis that led to his hospitalisation and treatment in June 1988 was a glioma of the right fronto-parietal lobe of the brain;
(f) that the late veteran was treated with varying degrees of moderate to heavy sedation and restraint during the last weeks of his life and that he was not cooperative with taking oral medication, in that he was confused, delirious, restless, disorientated and aggressive at varying times; and
(g) that the late veteran died at Calvary Hospital on the evening of 3 July 1988, having required oxygen therapy during the afternoon.
As a consequence of the Tribunal's finding of facts, the Tribunal further finds that the late veteran suffered from chronic outflow limitation as defined in paragraph 2 of Statement of Principles ("SOP") Instrument no 136 of 1996. In so finding the Tribunal has noted the continued reference to such a disorder in many of the clinical notes, but more importantly notes the various readings in Dr Dunn's notes, where a vitallegraph was used to measure the late veteran's forced expiratory volume in one second and the forced vital capacity in 1985 and 1986, and that paragraphs 1(a) and (b) of the definition are satisfied. The Tribunal's finding in relation to this diagnosis is made on the balance of probabilities.
The Tribunal further concludes, and again relying on the uncontested evidence of the Applicant, that the late veteran did acquire a smoking habit while on operational service, with the stressful event being issues associated with the bombing of Darwin and the development of a habit, whereby the late veteran smoked at a rate of 60 cigarettes per day which he continued after service until he ceased in 1979 or 1980. In this regard, the Tribunal finds that the late veteran had a smoking habit/addiction as defined in the SOP Instrument no 5 of 1994. The Tribunal also notes that the late veteran was discharged in 1994 with, according to his wife, some nervous disorder.
The Tribunal observes that a hypothesis exists, which relates the late veteran's chronic airflow limitation disorder to his war caused smoking habit. In further analysis, having noted that the appropriate SOP for this disorder is Instrument no 136 of 1996, the Tribunal finds that the late veteran does satisfy factor 5(a) of the Instrument in that it was clear from the Applicant's evidence that the late veteran had smoked much more than the ten pack years prior to the onset of his chronic airflow limitation condition which in the Tribunal's view was well established when Dr Alfred threatened to withdraw services in 1979 or 1980.
The Tribunal, as a consequence, finds that the hypothesis is a reasonable hypothesis and that subsection 120(3) of the Act is satisfied. Following further and particular review of the evidence, the Tribunal finds that none of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of another fact in the material is proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis. Thus the Tribunal finds that the late veteran's chronic airflow limitation condition is a war caused disability. Futhermore the Tribunal concludes that on examination of all available evidence, including the Applicant's statement that the late veteran's doctor threatened to discontinue provision of his services to the late veteran unless he stopped smoking in 1979/1980, the war caused disability has been in evidence for many years. Particularly where a measured ratio of forced expiratory volume in one second to forced vital capacity of between 66 and 72 per cent has been noted in the treating doctor's clinical notes, namely those of Dr Dunn.

The Tribunal observes that the remaining issue is whether the late veteran's war caused disability of chronic airflow limitation disease did or did not contribute to his death. In seeking to address this issue the Tribunal notes the discussion of the High Court in Repatriation Commission v Law (1981) 147 CLR 635 at 648, where Aickin J stated:
"When considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term 'material contribution' in this context. The adjective 'material' is not necessary but it's use is familiar…The expression 'contributed in any material degree' was used in the Workers' Compensation Act 1958 (Vict) and us used in s9(1)(e) of the VE Act and in s7(3) of the Commonwealth Employees' Rehabilitation and Compensation act 1988(Cth). In each case, the reference to a materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely, 'of substantial import or much consequence' but rather in its legal sense of 'pertinent' or 'likely to influence'.

The issue of contribution was further discussed by Davies J in Repatriation Commission and Bendy (1989) 10 AAR 323, where he stated:
"…the causes of the disease may involve complexities not present in the cause of an injury or incident…An issue of contributory cause should be approached in a practical common sense way."

In Asquith v Repatriation Commission (1989) 18 ALD 479, Deputy President McMahon concluded that:

"It seems to me that the relatively light anxiety suffered during the Applicant's service is so tenuous as to be immaterial."

Similar issues were raised by Davies J in Repatriation Commission v Hughes (1990) 13 AAR 34 and reinforced by Einfield J in Henry v Repatriation Commission (1992) 29 ALD 289.

In addressing the issue of whether the late veteran's war caused disability of chronic airflow limitation contributed to his death, the Tribunal notes the hypothesis postulated by the Applicant, namely the chronic airflow limitation disability did cause hypoxia and this hypoxia, together with his tumour, cause the late veteran variable but increasing symptomology, which included restlessness, confusion, agitation, aggression and a variable lack of cooperation with oral medication, which in turn created a need for increased sedation and restraint. This led to the late veteran experiencing difficulty with breathing, a requirement for oxygen supplementation and later in the evening of the same day, his death.
This hypothesis is supported by Dr Rodriguez, a specialist in both anaesthesiology and palliative care, and the Tribunal finds that the facts which form the hypothesis are drawn from the clinical material before the Tribunal. Futher the Tribunal, while noting the contention of the Respondent that such a hypothesis involves speculation, concludes that each element of the hypothesis is derived in part from elements of the clinical evidence before the Tribunal and that the creation of the hypothesis does not involve issues contrary to scientific fact, nor is it obviously fanciful or untenable. The Tribunal finds that a reasonable hypothesis, which nominates the late veteran's war caused disability of chronic airflow limitation as having influenced and as such contributed to the death of the late veteran, exists and accordingly the Tribunal finds that subsection 120(3) of the Act is satisfied.
In moving to a consideration of subsection 120(1) of the Act the Tribunal notes the report and opinion of Dr Breslin, a specialist physician, which in summary is that:
"No reasonable hypothesis can be made linking his chest disease with his death or materially contributing to it in any way and I consider his death to be due to the primary brain tumour and not to have been materially contributed to in any way from his lung disease…" (Exhibit R3)

The Tribunal acknowledges that the opinion of Dr Breslin raises a body of evidence, which if the Tribunal agrees with it would constitute the raising of facts which indeed may disprove facts which support the creation of the hypothesis or indeed may prove the existence of other facts, that by their existence disprove the hypothesis. The Tribunal acknowledges that in each of the nominated situations, the Tribunal must be satisfied beyond reasonable doubt.
While the Tribunal is unaware of the actual documentation provided to Dr Breslin, it is evident that he has seen the clinical notes of Dr Dunn, the clinical notes of Prince Henry, Port Macquarie and Calvary Hospitals and the ambulance report of the late veteran's flight to Sydney.
In his first background observation, Dr Breslin states that in August 1987, a general practitioner indicated that 'on examination NAD'. This was, on examination by the Tribunal, a single line taken from some forty pages of clinical notes by the same general practitioner over a period of five years, which in the Tribunal's view in no way reflects the late veteran's respiratory tract disease history as described by the general practitioner and extracted in part by the Tribunal earlier in this decision.
Further Dr Breslin notes that no comment was made in the notes that the giving of heavy doses of sedation would have been dangerous if the late veteran had severe or significant chronic obstructive airways disease. The Tribunal notes that post-operatively all care was directed towards the palliative care needs of the patient as evidenced by the clinical documentation from both Prince Henry and Calvary Hospitals.
Similarly Dr Breslin notes that no comment was made about chest complications in either the Prince Henry or Calvary Hospital clinical notes. The Tribunal notes however that the clinical notes for the afternoon of 3 July 1998 clearly state that the late veteran was having difficulty with his breathing and required oxygen.
Dr Breslin also notes that there was no record of blood gas analysis while at the Prince Henry Hospital or at Calvary. The Tribunal notes that an inference could be made that such estimations may not have been relevant, or there may have been reasons for their absence - namely that they were done and not collated in the records available, that there was no intention to undertake such investigations or alternatively, as stated by Dr Rodriguez, that they are not done in the palliative care setting.
Dr Breslin also notes that the late veteran was recorded as 'travelled well, no problems during flight', in his flight from Port Macquarie to Prince Henry Hospital. The Tribunal notes that the ambulance record also indicated that the late veteran, during his transfer from Prince Henry Hospital to Calvary, was recorded on 22 Jnue 1988 as having shallow breathing.
Dr Breslin concluded that if he has airways disease it was mild and was not considered clinically relevant. The Tribunal notes that Dr Breslin is not necessarily convinced that the late veteran had airways disease. The Tribunal notes the evidence of Dr Epstein, the clinical records of Dr Dunn, the clinical records of the various hospitals and the treatment afforded the late veteran for his respiratory conditions and concludes that the comment of clinical relevance may or may not have been borne of clinical fact, for in the Prince Henry clinical notes and their letter of referral to Calvary, mention is made of the condition.
Dr Breslin also makes mention of the changes made to the death certificate and that they were made at the behest of Dr Rodriguez, who did not personally care for the late veteran. The Tribunal draws no inference from Dr Rodriguez's actions in this matter and is of the opinion that she believed what she was doing was both a correct and a corrective action. The Tribunal also notes that Dr Breslin did not clinically attend upon the late veteran.
The Tribunal respects the views of both doctors, and while noting that it is the role of the Tribunal to decide whether or not a reasonable hypothesis exists, a considered reflection by the Tribunal upon the evidence and opinion given by Dr Breslin does raise in the Tribunal's mind a number of unanswered questions. Such questions include Dr Breslin's choice of a one line extract from forty pages of clinical notes fo Dr Dunn to commence his analysis; the apparent failure to properly document and/or assess the clinical notes of Dr Dunn; the failure to recognise the opinion of Dr Epstein and his apparent selective extracting of clinical material which may or may not be a fair representation of the late veteran's clinical issues. As a consequence the Tribunal, while recognising Dr Breslin's opinion on this matter, is not convinced that the facts raised by Dr Breslin are of such a nature and of such conviction to persuade the Tribunal to find that they disprove beyond reasonable doubt the facts that constitute the hypothesis, or alternatively prove beyond reasonable doubt the existence of other facts, which by their existence would disprove the hypothesis as postulated. The Tribunal finds that subsection 120(1) of the Act is satisfied.
As a consequence of the Tribunal's findings that the material in this matter raised a hypothesis, that the hypothesis was a reasonable hypothesis and that the Tribunal was not satisfied beyond reasonable doubt that the death was not war caused, the claim that the late veteran's death was contributed to by his war caused disability of chronic airflow limitation must succeed and the Applicant is entitled to payment of a widow's pension.
In final comment and finding, the Tribunal, having considered all the evidence, concludes that the late veteran is unable to satisfy paragraphs 1(a) and 1(b) of the SOP concerning malignant neoplasm of the brain, Instrument no 203 of 1995. The Tribunal finds that in such circumstances, a reasonable hypothesis linking his war service, brain tumour and death cannot be found to exist and that his condition of brain tumour must remain a non-accepted disability.
determination
The Tribunal determines that the decision under review be set aside and in substitution therefore determines that:
(a) the late veteran had a condition of chronic airways limitation; and
(b) this condition of chronic airways limitation was a war caused disability; and
(c) this war-caused disability made a contribution to the death of the late veteran; and
(d) the Applicant is entitled to a widow's pension with date of effect being 21 April 1997.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11 September 2000
Date of Decision  22 January 2001
Advocate for the Applicant      Mr R Sherlock
Solicitor for the Respondent    Mr R Wallis