Prendergast and Repatriation Commission
[2003] AATA 495
•30 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 495
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/252
VETERANS' APPEALS DIVISION )
Re CHRISTINE PRENDERGAST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date30 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether veteran’s death was war-caused – ischaemic heart disease - whether reasonable hypothesis established – whether veteran was obese for a period of at least 2 years within the 15 years immediately before the clinical onset of ischaemic heart disease
Veterans’ Entitlements Act 1986 ss 5B, 6A, 8, 11, 13, 14, 119, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cook (1998) 160 ALR 17
Benjamin v Repatriation Commission [2001] FCA 1879REASONS FOR DECISION
30 May 2003 Mr IR Way, Member 1. This is an application by Christine Prendergast (“the applicant”) for review of a decision of the Repatriation Commission made on 25 May 1999 and affirmed by the Veterans’ Review Board (“VRB”) on 3 February 2000, which determined that the death of the applicant’s husband, Leonard Prendergast (“the veteran”), was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1 Statement of Christine Elizabeth Prendergast dated 11 December 2001
§Exhibit A2 Supplementary Statement of Christine Elizabeth Prendergast dated 20 June 2002
§Exhibit A3 Report of Dr EG Galea dated 7 March 2002
§Exhibit A4 Operator’s Flying Log Book – LW Prendergast dated 13 October 1943
3. The applicant was represented by Mr D O’Gorman of counsel, instructed by Gilshenan and Luton, and the respondent was represented by Mr M Smith, Departmental Advocate. The applicant gave oral evidence.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.
5. The veteran was born on 10 November 1923 and served in the RAAF during World War II from 21 May 1942 to 6 November 1945. During his service with the RAAF the veteran was engaged in various flights to New Guinea and as such the whole of his service is operational service.
6. The applicant is a widow of a veteran who rendered operational service as defined in subsections 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II.
7. The veteran died on 26 January 1999, aged 75 years. The cause of the veteran’s death is recorded in the veteran’s death certificate as circulatory collapse (hours) due to as a consequence of ischaemic heart disease (19 years).
8. At the time of his death, the veteran had no service-related disabilities and no non-service-related disabilities, apart from death which is the subject of this review.
Legislative Framework
9. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 provides:
“(1)Subject to this section, 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;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
10. Section 120 describes the relevant standard 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.
…
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
11. Other relevant provisions of the Act in respect of a claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
12. Section 120A provides that the reasonableness of hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP).
“(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.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
13. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
14. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
15. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless a relevant SoP upholds the hypothesis.
16. The applicant has raised the hypothesis that the veteran suffered from obesity as a result of service-induced changes in eating and drinking habits (which continued post-service); that the veteran’s obesity contributed to his ischaemic heart disease; and therefore the veteran’s death was contributed to by his service.
17. It is common ground between the parties, and the Tribunal accepts, that the relevant Statement of Principles (SoP) in this matter is Repatriation Medical Authority Instrument No 38 of 1999 (Ischaemic Heart Disease).
18. Instrument No 38 of 1999 relevantly provides as follows:
“Kind of injury, disease or death
2(a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b) For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure,
attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are: …
(c) being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease; or …
Other definitions
For the purposes of this Statement of Principles:
‘being obese’ means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of ‘being obese’ signed by the Chairman of the Authority on 16 August 1996.”
19. The RMA Statement about the causes of “being obese” (dated 16 August 1996 and referred to above) relevantly provides:
“The Repatriation Medical Authority was not able to determine a Statement of Principles in respect of obesity as it was of the view that ‘obesity’ is not a ‘disease’ or ‘injury’ as defined in subsection 5D(1) of the Veterans’ Entitlements Act 1986. However ‘being obese’ is accepted as a causal factor in a number of diseases. The Authority has recently reviewed the ‘sound medical-scientific evidence’ relevant to ‘being obese’ and has decided upon a new definition for it. In considering this information, the RMA found that the causes of ‘being obese’ are one or more of the following factors preceeding ‘being obese’:
exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight; …
Explanation of terms used:
‘baseline weight’ means the weight level which was being maintained prior to the effect of the particular factor specified; …”
Applicant’s evidence
20. The applicant provided a written statement dated 11 December 2001 (Exhibit A1) and a supplementary written statement dated 30 June 2002 (Exhibit A2).
21. In her written statements the applicant said she first met her husband in 1954 and they were married the same year. She said:
“6.When I first met Len, it was clear that he suffered from stress. He continued to suffer from stress for the rest of his life.
7.There is no doubt that he was a heavy drinker and that this beer consumption was associated (in my mind) with the stress he suffered on service.
8.Len’s friends [occasionally] told me that during the service, he was just as stressed and in those days he drank to get relief from this stress.
9.Len drank beer everyday – at lunchtime, after work and in the evening.
10.He drank beer at first, but as this had a detrimental effect upon his weight, he eventually changed over to drinking spirits and wine.
11.After he changed over to spirits and wine, his weight began to reduce, which clearly demonstrated a relationship between his beer-drinking and his weight.
12.Len would serve us both wine with the evening meal. I would have very little from one or two bottles and Len would have the rest.
13.There were times when Len would drink to such a point that it would clearly affect his capacity to drive. Even so, he insisted on driving on those occasions despite the fact that we both knew he was well over the limit.
14.When I first met Len, he only weighed 13 stone but that was after five years living by himself on a property.
15.There is no doubt in my mind that he had taken off weight as a result of the heavy work requirements on the farm for those five years.
16.After we were married, Len’s weight increased gradually, courtesy of his drinking habit and more regular eating habits.
17.As his weight increased, further strain was placed on his knees and back conditions which further slowed him down and again increased his weight.
18.Even when Len saw his Cardiologist, who advised him to give up drinking, Len still continued to drink right up until the time he passed away.
19.There is no doubt in my mind that in Len’s case, stress on service induced an alcohol habit which contributed to his weight increase, which contributed to his heart condition, the cause of death.”
22. In her supplementary statement, the applicant said:
“4.Len’s friends at these reunions would often recount stories about my husband and his drinking habits during their training. It was a stressful time for everyone.
5.The amount that my husband was drinking during his time in the service was commented on by all his friends and certainly he drank quite heavily all through our marriage.
6.In 1948, Len drew a serviceman’s block about 60 miles north-west of Blackall in central-western Queensland. While there, he was living alone, and working very hard physically and when we met and married in 1954, his weight was about 12 stone.
7.In 1956 we moved to a property near Manilla in New South Wales. Once there my husband’s weight increased slowly but surely. He was drinking a lot of beer at that time and by about 1960 – 1961 he weighed over 16 stone.
8.About this time, he developed Angina (though it was not recognized until later, indicating that insufficient blood was reaching his heart. It was also about this time or slightly earlier that he suffered a hairline fracture of the pelvis, which limited for a time his physical capacity for work or exercise. His first diagnosed heart attack occurred after we moved to Springbrook in Queensland.”
23. In her oral evidence the applicant told the Tribunal that her husband spoke little to her about his war-time experiences and she could not recall any details about his eating habits or sporting/recreational activities during his service. It was the applicant’s evidence that she had no first-hand knowledge of the veteran’s drinking habits prior to and during his service in the RAAF. She said that she is aware that he played cricket in his early days and when she first met him. However, he gradually gave up playing because he suffered from arthritis and stopped playing altogether in about 1973 because of his arthritis and because he had a heart attack. She said that he had suffered from arthritis from the time she married him.
24. In cross-examination the applicant was referred to her two statements (T4/22) and Exhibit A2 where she said the veteran at the time of her marriage weighed about 13 stone and about 12 stone respectively. She said she did not watch his weight closely and he would probably have weighed somewhere between these two weights.
25. Furthermore, when asked how she could recall the veteran weighing over 16 stone in about 1960-1961 she said that she understood him to say that he was at the same weight that he was when he left the RAAF and she thought that this was 16 stone. The Tribunal notes that the veteran’s service documents record him as being 15 stone on discharge.
26. The applicant gave a history of the veteran being engaged in pastoral work, as a jackeroo, a stockman and overseer, and grazier prior to and subsequent to his RAAF service, principally running sheep and cattle. She described his work as such as vigorous. However, she said he did slow down quite a lot when he had two knee replacements after they moved to Warwick in 1973. The Tribunal notes that on entry to the RAAF it was noted that the veteran played football and cricket and engaged in riding and swimming and that prior to service he did not have a smoking or drinking habit.
Medical Evidence
27. Dr EG Galea, Consulting Cardiologist, reviewed the veteran’s documents (including the applicant’s statements and the relevant RMA SoP and Statement) and provided a written report dated 7 March 2002 (Exhibit A3). In his report, Dr Galea said:
“At the time of his death Mr Prendergast was aged 75 years and some months. Initially there were no service related disorders and there was no cigarette smoking, no history of dyslipidaemia. He had a history of obesity. There was no recorded history of obesity, diabetes mellitus or hypertension. At the time of his induction Mr Prendergast was 69” tall and his weight was 182 lbs and his blood pressure was 140/85. This was on 27/3/1942 and in my classification this would be overweight. He died on 26/1/1999 at St Andrew’s War Memorial Hospital. He had had ischaemic heart disease for 19 years. The final episode was a circulatory collapse. On 26/1/99 when he was having a second cardiac revascularisation. Initially he was a patient of Dr Geoffrey Holt. On 26.1.1999 his LMO was Dr Maurice Stevens, his surgeon was Dr Michael Gardner. On 29.12.1998 Dr Wayne Stafford had implanted a permanent cardiac pacemaker. His angina began in 1957 to 1964, myocardial infarct 1970, the first bypass grafts were done in 1980. According to Mrs Prendergast’s Statement, in 1954, at the time of their marriage, he weighed 13 stone and he continued to gain weight steadily until he weighed 16 stone. During his service he increased his body mass index by 15.4%.
According to the records, and I will go into this more thoroughly later, the SOP for obesity requires an increase of 20% in the baseline weight. This is weight and not the BMI. The only apparent service related condition which may be relevant to his final demise was his obesity as all of the other factors were negative. Although his widow alleges that stress caused his abuse of alcohol there seems to be no service record of the stress in the file nor is there any documented information linking the stress to service or his operational duties. The Statement of Principles apply and he was certainly obese for a period of at least two years within the fifteen years of the clinical onset of coronary artery disease which I would date as 1957 – 1964 although the first infarct took place in 1970. This man, I think, was overweight all of his life and he was overweight at the time of his marriage but then his obesity gradually increased.
Looking more closely now at the obesity definition at his induction he was 69”, 182 lbs. This calculated out at a Body Mass Index of 26.9 which in my opinion would classify him as overweight. His BMI, when he married in 1954, was again 26.9. When he gained weight to 16 stone he was 224 lbs or 101.8 kg and his BMI was then 33.2 which would certainly qualify him with a diagnosis of morbid obesity. His weight gain was from 182 to 224 lbs which would be 23% so again this would bring him within the categorisation of obesity as defined in the Statement of Principles of the RMA Statement dated 16th August 1996. His weight gain was 23%. Again this qualifies him according to the RMA Statement of Principles.”
28. Dr Galea concluded with comments that the veteran’s history of obesity was consistent with the view that it was contributed to by excessive caloric intake associated with a service-induced beer drinking habit. However, Dr Galea did raise the need to assess the veteran’s stress related to his operational service and how such stress contributed to the veteran’s continued alcohol abuse.
Submissions
29. The hypothesis contended for the applicant was that the veteran was a fit, young man at the time of enlistment, who did not smoke or drink, who weighed 182 lbs on entry to the RAAF and 210 lbs at discharge, and the increase in his weight of 2 stone was as a result of his eating habits being influenced by the rations and beverages that he consumed as part of his life in the RAAF (which continued post-service) along with limited exercise. It was further submitted that the veteran’s changes of eating habits and drinking habits were further entrenched by the stress associated with his service in the RAAF.
30. As such, it was submitted that the veteran satisfied factor 5(c) of the relevant SoP in respect of ischaemic heart disease, namely:
“being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease;”
and factor (a) of the Statement about causes of being obese, namely:
“(a)exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;”
31. It was submitted that the evidence of Dr Galea supported the applicant’s case and that the Tribunal, after consideration of all of the material before it and taking into account the provisions of section 119 of the Act, would be satisfied that the applicant was entitled to a war widow’s pension.
32. Mr Smith submitted that the respondent took issue with the applicant’s contentions that the veteran’s service was sedentary; that the veteran’s service was stressful (the veteran not having engaged in combat operations); that the veteran’s eating habits during service contributed to his weight gain (there being no evidence at all about service rations or the veteran’s eating habits pre-service, during service or post-service); and that the veteran engaged in drinking of his own free will and within the sphere of his personal life (and as such not causally connected to his relevant service).
33. In respect of the parameters of obesity, it was submitted that the veteran, being 175 cm tall, pursuant to the requirement in the relevant SoP, the veteran would need to weigh 91.8 kg or 202 lbs to reach a BMI of 30. It was further submitted that both the SoP and the Statement about being obese require a 20% increase in weight above the baseline. In this case, the baseline being 182 lbs, a 20% increase would result in a threshold level for obesity of 218.5 lbs. The respondent submitted that there was some difficulty in determining the onset of the veteran’s ischaemic heart disease and that in this case there is insufficient evidence to line up a temporal relationship of obesity and his ischaemic heart disease according to the requirements of the SoP.
34. It was the respondent’s submissions that the decision under review should be affirmed.
Consideration
35. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
36. After careful consideration of all of the material before it, the Tribunal is satisfied that the material before it does point to an hypothesis as contended by the applicant and that there is in place a relevant RMA SoP, namely, Instrument No 38 of 1999.
37. The Tribunal then must consider whether the hypothesis put forward by the applicant is a reasonable one.
38. In this case there is no question as to whether the applicant suffered from ischaemic heart disease. What is not entirely clear is the time of clinical onset of the veteran’s ischaemic heart disease. The veteran’s death certificate refers to ischaemic heart disease being of duration of 19 years prior to the veteran’s death. However, there is medical evidence before the Tribunal that the veteran suffered from angina from 1957 to 1964 and that the veteran suffered a myocardial infarct in 1970. Dr Galea has opined that the clinical onset of the veteran’s coronary artery disease would be “1957 – 1964”.
39. On all of the material before it, the Tribunal is reasonably satisfied that the veteran’s death was as a consequence of ischaemic heart disease, with the clinical onset of this disease being 1957 (see Repatriation Commission v Cook (1998) 160 ALR 17 and Benjamin v Repatriation Commission [2001] FCA 1879).
40. In this case the applicant relies on the veteran being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease.
41. The question then before the Tribunal is whether this factor exists, such that it can be said that the hypothesis fits the “template” to be found in the SoP.
42. The raised facts that are relevant in determining whether the contended facts exist are as follows:
§The veteran’s height was 69” (1.75 m).
§The veteran’s weight on medical examination for enlistment on 27 March 1942 was 182 lbs (82.6 kg).
§The veteran’s weight on clinical examination at discharge on 10 October 1945 was 210 lbs – clothes except for tunic (95.3 kg).
§The applicant’s evidence is that the veteran at time of marriage on 11 December 1954 was approximately 182 lbs (82.6 kg).
§The applicant’s evidence is that the veteran, subsequent to marriage and from about 1956, gradually increased his weight as a result of more regular eating habits and drinking beer, to the same weight that he was at discharge, namely 210 lbs (95.3 kg); and that by 1960–1961 he weighed over 16 stone (224 lbs - 101.7 kg).
43. The above raised facts need to be considered in the context of the definitions of “being obese”.
44. The baseline weight of the veteran is 182 lbs (82.6 kg).
45. For the veteran to have a BMI of 30 or greater (given that his height was 1.75 m), his weight would need to be 91.9 kg (202 lbs).
46. For the veteran to have a 20% increase in baseline weight, the veteran would need to weigh 218 lbs (99 kg).
47. The question then before the Tribunal is whether the veteran weighed 91.9 kg (202 lbs) or more and had increased his weight in the order of 36 lbs (16.4 kg) for at least two years prior to 1957.
48. The veteran certainly increased his weight during service. However, this increase in weight, on the material before the Tribunal, was not of sufficient magnitude to bring the veteran within the definition of being obese, in that while his BMI meets the criteria, his weight increase of 15% falls well short of the order of 20%.
49. From 1945, the time of discharge, to the end of 1954 (the time of marriage), the only evidence before the Tribunal is that the veteran lost weight to the point that when he was married at the end of 1954 he was back to his baseline weight. As such, during the period post-war for the next nine years after discharge, the veteran cannot be seen to meet the criteria of being obese.
50. After their marriage in late 1954, it was the applicant’s evidence that it was not until 1956 that the veteran started to gain weight and that he gradually increased his weight to about the same level as at discharge and then by the early 1960s he weighed one stone or more above his discharge weight.
51. On this evidence the Tribunal is of the view that it is unable to conclude that the veteran meets factor 5(c) of the relevant SoP, in that he was not obese, within the meaning of that term in the SoP and the RMA Statement dated 16 August 1996, for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease in 1957. That being so, the Tribunal is satisfied that the applicant’s hypothesis fails to fit within the template of the relevant SoP and hence the applicant’s claim must fail.
52. The Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 7 May 2003
Date of Decision 30 May 2003Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
0
4
0