Phelps and Repatriation Commission
[2004] AATA 355
•2 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 355
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/413
VETERANS' APPEALS DIVISION ) Re RHONDA DULCIE PHELPS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date2 April 2004
PlaceAdelaide
Decision
The Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused, within the meaning of s 8 of the Veterans’ Entitlements Act 1986, with effect from 17 October 2001.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Widows Pension – if veteran’s death was attributable to his war service – if applicant is eligible for a Widows Pension – reasonable hypothesis – decision set aside
Veterans’ Entitlements Act 1986 sections 120, 120A
Statement of Principles Instrument No 93 of 1995
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
2 April 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 5 March 2002, which determined that the death of Leonard William Phelps (the veteran) was not related to service. The Veteran’s Review Board (VRB) affirmed the decision on 8 August 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Swan represented the applicant, who called Dr A Russell, Senior Staff Cardiologist, Repatriation General Hospital, as a witness. Mr Crowe represented the Commission.
3. The late veteran was born on 24 February 1919, and served in the Royal Australian Air Force (RAAF) from 28 January 1941 until 5 November 1945, which is his eligible war service. As he served outside Australia during this time, his eligible service is also operational service. The veteran died on 16 October 2001, aged 82 years, and the conditions listed on the certification of death were cardiogenic shock (1 week), dilated cardiomyopathy (2 years), and mitral regurgitation (years). He did not have any conditions accepted as war-caused.
4. On 26 November 2001 the applicant lodged a claim for pension in respect of the death of the veteran, which was rejected on 5 March 2002. On 8 August 2002 the VRB affirmed the decision.
5. The veteran rendered operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(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.
Note: This subsection is affected by section 120A.
(2) …
(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.
Note: This subsection is affected by section 120A.”
6. Section 120A of the Act provides:
“(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) …
(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.
…”
7. The hypothesis propounded by the applicant is that the veteran’s death was as a result of rheumatic heart disease which occurred during service, and which caused valvular disease, which in turn led to cardiac failure due to a melarcarsis. The rheumatic heart disease was complicated by endocarditis in the early 1950s. The alternative hypothesis is that the veteran contracted endocarditis, or a form of carditis in New Guinea, that gave rise to his rheumatic heart disease. In my view, the material before the Tribunal, if correct, would point to a hypothesis that the veteran’s death was war-caused. There are Statements of Principles in force, and in accordance with those Statement of Principles, at least one of the factors set out in clause 1 must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the applicant’s relevant service.
8. The current Statement of Principles for rheumatic heart disease, which was in force also at the time of the primary Commission decision, is Instrument No 93 of 1995 (the Rheumatic Heart Disease SoP). The applicant contends that factor 1(a) or (b) of the Rheumatic Heart Disease SoP is satisfied:
“(a)suffering from rheumatic fever before the clinical onset of rheumatic heart disease; or
(b)suffering a streptococcal A infection before the clinical onset of rheumatic heart disease;”
“Rheumatic fever” is defined in the Statement of Principles as:
“a febrile disease occurring as a delayed sequela of infections with group A beta-hemolytic streptococci and characterised by multiple focal inflammatory lesions of connective tissue especially involving the heart, blood vessels and joints with resultant arthritis, chorea, or carditis appearing alone or in combination, and attracting ICD codes 390, 391, or 392;”
“Rheumatic heart disease” is defined in the Statement of Principles as:
“… a chronic condition characterised by scarring and deformity of the heart valves and/or pericardium, and attracting ICD codes 393 to 398;”
“Streptococcal A infection” is defined in the Statement of Principles as:
“… invasion of the tissues, commonly of the throat or skin, by micro-organisms known as group A beta-hemolytic streptococci and which may result in a pyogenic, or suppurative, infection.”
9. The Commission concedes that rheumatic heart disease was the cause of the veteran’s death, but submits that there is no evidence that the veteran suffered from rheumatic fever as a result of his war service, and factor 1(a) of the Rheumatic Heart Disease SoP is not satisfied. In addition, there is no evidence that the veteran suffered a streptococcal A infection as a result of his war service, and factor 1(b) of the Rheumatic Heart Disease SoP is not satisfied.
10. Dr Russell, consultant physician in cardiovascular medicine, had treated the veteran at the Repatriation General Hospital from the late 1980s, and considered that rheumatic heart disease was the cause of his death. Dr Russell reported on 27 February 2003, in part, as follows:
“… I have always considered the etiology of his valvular heart disease to be most likely rheumatic with the congestive cardiac failure secondary to those conditions in the latter part of his life.
He did have a history of endocarditis, I think in about 1953. This was treated at the Royal Adelaide Hospital.
In many cases the episode of streptococcal infection leading to rheumatic heart disease is not clinically apparent and it is hard to know when it occurred. On the other hand he would have had to pass a medical examination before entry into the RAAF. It is unlikely that it occurred before then.
I can thus make a reasonable hypothesis that the rheumatic carditis occurred during the period of war service, and was then complicated by endocarditis in the early 50’s. The degree of cardiac injury was relatively mild thus allowing him to survive a further 48 years.
…” [Exhibit A1]
11. In a later report of 29 May 2003, Dr Russell replied to questions posed by the Department of Veterans’ Affairs, stating, in part, as follows:
“…
3. Is there any evident [sic] in Dr Pugh’s letter, in the RAH notes or in any other evidence available to you that points to a long-standing infection leading up to Mr Phelps’1953 endocarditis?
·I do not believe there is any evidence pointing to a long-standing infection leading up to his endocarditis. At the initial examination on 14th January 1941 when Mr Phelps was 21 years and 10 months of age, working as a farm hand, no cardiovascular abnormality was evident.
4. Is the bottle shaped heart described by Dr Pugh a significant factor?
·I believe this description of a bottle shaped heart at the time of endocarditis is significant as it indicates some degree of cardiac enlargement. Although this is possibly due to the endocarditis, it may also indicate long-standing cardiac enlargement due to valvular or rheumatic heart disease.
…
8.Is there any evidence in the notes held by you to indicate when the initial infection occurred?
·My interest is drawn to the diagnosis of measles. Here he presented with the coryza over three days in association with a febrile illness and a rash. The rash was on the face and body and there were hepatic lesions on the lips and nose. Although this does not satisfy the full criteria of rheumatic fever these findings are consistent with streptococcal infection. I conclude that he did suffer rheumatic carditis at some stage after enlistment and before developing bacterial endocarditis as a complication in 1953. This would most likely to have occurred due to Group A streptococcal infection during active service. It is possible that the initial infection was that admission diagnosed as measles in June 1942. It was the sequelae of that rheumatic carditis that most likely lead to the bottle shaped heart and subsequent endocarditis and later his death.
…” [Exhibit A2]
12. Dr Russell said in evidence that the illness the veteran suffered in May 1942 may have been measles, or it could also have been rheumatic fever; but he considers it more likely that the veteran suffered a streptococcal A infection, which can be a cause also, of rheumatic fever. In 1953, at the age of 34, the veteran was diagnosed with sub-acute bacterial endocarditis. Dr Russell said that essentially people with structurally normal hearts rarely suffer that condition. The pattern of the veteran’s valvular lesion was not consistent with a congenital cause. The pattern of the scarring indicated that there was an external cause. This suggested to Dr Russell that there was pre-existing valvular damage, and that the most likely cause was rheumatic carditis due to streptococcal A infection. Dr Russell said that at some stage, before 1953, the veteran developed a streptococcal A infection that led to the valvular abnormality which posed the risk of endocarditis. In his view the period of military service stands out as the period of greatest risk for that infection. There was no record of damage to the veteran’s heart at enlistment; nor is there evidence at his discharge; 1953 is the earliest clear evidence of any heart disease. I accept Dr Russell’s evidence.
13. I consider that although Dr Russell concedes that there is no direct evidence from the veteran’s service records, that he suffered from a streptococcal A infection during his war service, it is reasonable to accept Dr Russell’s opinion, that by 1953 the veteran had a pre-existing heart condition, valvular damage, and that the most likely cause of that was rheumatic carditis, due to a streptococcal A infection. I accept Dr Russell’s opinion also, that the veteran’s military service, which involved service in New Guinea, was the period of greatest risk for that injection.
14. In the matter of Bushell v Repatriation Commission (1992) 175 CLR 408, the High Court said at pp 414-415:
“…
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. …
…
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature” (13). Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” (14).
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
…”
15. I accept the validity of Dr Russell’s reasoning, which supports the claim that there is a connexion between the veteran’s death and his service. I am satisfied on the evidence that the veteran suffered a streptococcal A infection before the clinical onset of rheumatic fever, and that the suffering of the infection was related to the service rendered by the veteran. Factor 1(b) of the Rheumatic Heart Disease SoP is satisfied.
16. I am of the view that having regard to the whole of the material, it raises a reasonable hypothesis of a connexion between the service rendered by the veteran and his death, as a result of rheumatic heart disease.
17. For these reasons the Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused, within the meaning of s 8 of the Act, with effect from 17 October 2001.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 20 October 2003
Date of Decision 2 April 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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