Riordan and Repatriation Commission
[2004] AATA 554
•1 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 554
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1145
VETERANS' APPEALS DIVISION )
Re KITTY RIORDAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member KL Beddoe
Dr KP Kennedy OBE, MemberDate1 June 2004
PlaceBrisbane
Decision The Tribunal decides:
(a) the decision under review is set aside;
(b) the veteran’s death was war-caused within the terms of section 8 of the Veterans’ Entitlements Act 1986; and
(c) the date of effect of this decision is 20 December 2000.
..................[Sgd].......................
KL Beddoe
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether veteran’s death caused by lymphoma, as indicated on death certificate, or a cardiac episode – balance of probabilities - unexpected death of the veteran - death due to a sudden cardiac episode related to underlying ischaemic heart disease rather than lymphoma – reasonable hypothesis raised connecting ischaemic heart disease with war service – decision set aside
Veterans’ Entitlements Act 1986 ss 8, 13, 120(1), 120(3)
REASONS FOR DECISION
1 June 2004 Senior Member KL Beddoe
Dr KP Kennedy OBE, Member1. The respondent rejected a claim for a war widow’s pension on the basis that the veteran’s death was not related to his war service. The Veterans’ Review Board decided to affirm that decision and the applicant sought review in this Tribunal. The Commission’s decision was notified on 11 September 2000 but review by the Veterans’ Review Board was not sought until 20 June 2001.
2. Section 13 of the Veterans’ Entitlements Act 1986 (“the Act”) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay pension by way of compensation to the dependants of the veteran in accordance with the Act.
3. Section 8 of the Act relevantly provides that the death of a veteran shall be taken to have been war-caused if the death resulted from an occurrence that happened while the veteran was rendering operational service.
4. The issues are to be determined on the applicable standard of proof under section 120 of the Act. Relevantly, sub-sections 120(1) and 120(3) provide:
“(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.”
5. Sub-section 120A(3) relevantly provides that a hypothesis connecting the death of a veteran with the circumstances of any particular service rendered by the veteran is a reasonable hypothesis only if there is a Statement of Principles, determined under section 196B of the Act, that upholds the hypothesis.
6. At the hearing, Mr Harding appeared for the applicant and Mr Smith represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as “T” Documents and further documents were tendered and marked as exhibits.
7. Oral evidence was given by the applicant; Dr Love, a Consultant Physician; Dr Grant, Senior Medical Officer and Dr Rivers, Consultant Cardiologist.
8. We make the following findings of fact:
(a)The veteran was born on 5 May 1917 and died on 23 May 2000 aged 83 years;
(b)The veteran was called up for full-time service on 5 January 1942 and discharged from the Army on 3 April 1946 having had operational service from 23 June 1942 to 1 July 1943 so that all of the full-time service is deemed to be operational service;
(c)A death certificate issued in relation to the veteran shows cause of death as Lymphoma (1 year) and Dementia (2 years);
(d)While the death certificate shows that the veteran and the applicant had been married for 30 years, we accept that they married on 12 April 1947 having first met earlier in 1947;
(e)We also accept that the veteran was a regular smoker when the applicant met him in 1947 and that he continued the habit until 1995 when he was diagnosed and operated on for the accepted service-related disability – “Malignant Neoplasm of the Lung”;
(f)In 1995 the veteran answered a smoking questionnaire which included the following questions and responses:
“When did you first start smoking on a regular basis? --- 1940.
Approximately how many cigarettes per day? --- 4-5 cigarettes per day.Why did you start to smoke on a regular basis? --- Social basis only.”
He also said that his smoking pattern changed in “1942-43” due to “stress/service Darwin” to 3-4 ounces of tobacco per week.
9. We have no reason to doubt the veteran’s responses on the smoking questionnaire which is supported by the applicant’s evidence that he was a regular smoker until 1995 and, on the balance of probabilities, the habit was to smoke at an increased level of at least 15 cigarettes per day from mid-1942 when the veteran commenced duty in Darwin.
The Medical Evidence
10. The first medical witness was Dr James Love, a specialist physician who gave evidence by telephone. Dr Love had earlier provided a written report dated 28 June 2003 and his evidence-in-chief essentially confirmed what had been included in his written report.
11. In that report Dr Love referred to the fact that when the veteran had been an inpatient at the Prince Charles Hospital in 1995 for removal of a lung cancer, he had developed pulmonary oedema post-operatively and that an echocardiogram performed at the time had shown impaired left ventricular function.
12. In March 2000 the veteran had been admitted to Rockhampton Hospital with an acute myocardial infarct associated with an irregular heart rate. He was put on a variety of cardiac medications which were continued until the time of his death. In the opinion of Dr Love, these episodes provided definite evidence of ischaemic heart disease.
13. Dr Love also referred to the diagnosis of cutaneous lymphoma which had been initially made in 1999. Dr Love noted that as far as the lymphoma was concerned, the veteran had been able to move, talk, eat and drink on the night prior to his death and that there had been no suggestion that he was slipping into a coma as might be expected with a terminal malignant process. Dr Love considered that the fact that he died suddenly in his sleep would have been more likely to have been due to a sudden cardiac episode related to his ischaemic heart disease than to dementia or lymphoma.
14. Dr Love, in response to a question from the Tribunal, confirmed that there is an increased risk of sudden death in the weeks following myocardial infarction and, having perused the medical documentation, he further stated that he did not accept that dementia or lymphoma would have been the cause of the sudden death of the veteran.
15. Dr Peter Grant, Senior Medical Officer Compensation, Department of Veterans’ Affairs, also gave oral evidence. Copies of earlier written reports prepared by Dr Grant had also been provided.
16. Dr Grant, in his evidence-in-chief, stated that he had been unable to find any evidence of acute myocardial infarction at the time of death nor had any symptoms of ischaemic heart disease been reported shortly prior to his death. In reply to questions from the Tribunal, Dr Grant confirmed that he had in effect given considerable weight to the report of Dr Allan. Dr Allan had been the treating doctor and Dr Allan had stated that lymphoma was the most likely cause of death as the veteran had rapidly increasing involvement of all tissues of the body by lymphoma.
17. The next medical witness was Dr John Rivers. Dr Rivers had provided a written report dated 20 August 2003. In that report Dr Rivers had stated that there is a statistical possibility that following known impaired left ventricular function and myocardial infarction earlier in March 2000, that the patient could have had a further cardiac event but the documentation available did not provide any specific evidence to enable him to come to that conclusion.
18. In reply to a question from the Tribunal, Dr Rivers stated that in the absence of lymphoma and dementia, the most likely cause of death, on the balance of probabilities in the case of the veteran, would be a cardiac death.
19. A written report from Dr CM Allan, undated, but received by the Department of Veterans’ Affairs on 17 July 2001, confirmed that the lymphoma had been diagnosed in 1999. Dr Allan had been the veteran’s treating doctor when the diagnosis of lymphoma had been made and also during the years preceding his admission to Rockhampton Hospital in March 2000 with the myocardial infarct. While the veteran had died on 23 May 2000, Dr Allan had indicated on the death certificate that he had not seen the veteran since 5 May 2000 (which had in fact been the day after the admission of the veteran to the nursing home).
20. Dr Allan in his letter stated that the cause of death was not absolutely certain but in the context of the severe and rapidly increasing involvement of all tissues of the body by the lymphoma, it was most likely that this was the primary cause. He went on to state that the rapidity of extension of the lymphoma made the death expected.
21. A written report dated 27 July 2001 was also available from Dr Agar-Wilson, a Specialist Anaesthetist and a Specialist in Pain Medicine and Palliative Care. Dr Agar-Wilson had first seen the veteran on 10 March 2000. He had last seen the veteran on 4 May 2000 on the day that he had been discharged from Rockhampton Hospital to the extended care facility. Dr Agar-Wilson expressed the opinion that at the time of his discharge, although his condition was progressing, he was not deemed to be acutely close to death. Dr Agar-Wilson had not been provided with any details concerning the death and therefore was unable to assist further.
22. The other relevant information concerning his medical condition prior to death was recorded in the nursing notes of the extended care unit to which the veteran had been admitted on 4 May 2000. He remained in that unit until his death on 23 May 2000.
23. The notes indicate that his overall condition tended to vary from day to day mainly in relation to the degree of confusion associated with his dementia. On 18 May 2000, the nursing records indicate that he was able to shower himself independently and that with a little direction and prompting he could dress himself and attend to oral and hair care independently. He was said to be mobilising well. On 21 May he was visited by his son and wife, had a good morning and was mobilising well. On the night of 22 May, he was found sitting on the floor but he was able to move all limbs and weight-bear. He was encouraged to use the buzzer for assistance. Later at 2315 hours he complained of being hungry and was given a cup of tea. He settled and was observed to be sleeping at 2330 hours. At 0650 hours the following morning he was found to be deceased.
Consideration
24. Following the hearing both parties made written submissions with the leave of the Tribunal. Those submissions have been taken into account.
25. The question for the Tribunal to consider is whether on the balance of probabilities the death of the veteran had been due to a cardiac episode related to ischaemic heart disease or to a cardiac episode related to medication prescribed for the ischaemic heart disease. The alternative explanation for his immediate death was the lymphoma and/or dementia as stated on the death certificate.
26. No medical evidence was given to suggest that dementia was the primary cause of death. We are left then with the possibility that the death was due to either the lymphoma and/or ischaemic heart disease.
27. The death certificate had given the cause of death as lymphoma and Dr Allan, who had signed that certificate, had in a subsequent letter said that the rapidity of extension of the lymphoma had made the death expected. Dr Allan had also made the statement that the lymphoma had involved all tissues of the body. Dr Grant admitted that his opinion had been heavily influenced by the information provided by Dr Allan.
28. Review of the records does not indicate that the lymphoma had involved more than the skin although the skin was extensively involved. It is not correct then to say that all tissues of the body were involved. Dr Allan said that the lymphoma had rapidly extended but review of the nursing notes does not suggest any significant change in the general condition of the veteran during his three weeks in the extended care facility. Despite the opinion of Dr Allan, the Palliative Care Specialist, Dr Agar-Wilson, who was quite familiar with the veteran, stated that at the time of his transfer to the extended care facility he was not deemed to be acutely close to death. In addition, one would expect that if there had been any significant deterioration in the condition of the veteran during his three weeks in the extended care facility, then the staff would have requested review by Dr Allan. As noted, Dr Allan did not see the veteran subsequent to 5 May 2000.
29. The information provided in the nursing notes is consistent with the statement of his wife that he remained mobile right up to the last day of his life. As she had stated, his death was sudden and unexpected and it was her understanding that none of the doctors had held the belief that his death was imminent.
30. In his report and oral evidence, Dr Love clearly established that the veteran did have ischaemic heart disease and that diagnosis was not disputed. In relation to the lymphoma, Dr Love indicated that, having regard to the activities of the veteran in the time prior to his death, there had been no suggestion that he was slipping into a coma as might be expected with a terminal malignant process. Dr Love believed that the sudden death in his sleep was more likely to have been due to a cardiac episode related to the ischaemic heart disease. He did not accept that the lymphoma or dementia would have been the cause of sudden death in this veteran. We found the evidence of Dr Love to be very persuasive.
31. Dr Rivers, while agreeing that there was no specific documentation to enable him to say that the death of the veteran had been due to a cardiac event associated with his ischaemic heart disease, indicated that having regard to his earlier history there was a statistical possibility that he could have had a further cardiac event. Dr Rivers also stated that if dementia and lymphoma were excluded then on the balance of probabilities the death would have been a cardiac death. There was no significant disagreement between the evidence of Dr Rivers and that of Dr Love.
32. Finally, although Dr Allan had listed the cause of death as lymphoma and dementia, in subsequent correspondence Dr Allan said that the cause of death was not absolutely certain and allowance must be made for the fact that Dr Allan had not seen the veteran during the last 18 days immediately prior to his death.
33. The Tribunal, on the basis of all of the evidence, finds that the lymphoma and dementia had been steadily progressive and that the lymphoma would have eventually caused the death of the veteran. The Tribunal finds, however, that the death of the veteran was sudden and unexpected and that the nature of his death would indicate that a factor other than dementia and lymphoma was responsible for his death at that time. The Tribunal is persuaded by the evidence of Dr Love and Dr Rivers that on the balance of probabilities the unexpected death of the veteran was due to a sudden cardiac episode related to his underlying ischaemic heart disease.
34. Taking into account all the material before us, there is a hypothesis before the Tribunal that the veteran’s death was caused by a cardiac episode caused by ischaemic heart disease, a material contributing factor of which was increased smoking of tobacco during operational service.
35. There is no dispute that the relevant Statement of Principles is Instrument No 53 of 2003.
36. The question then is does the hypothesis satisfy one or more of the factors set out in clause 5 of the Instrument.
37. Impaired left ventricular function was noted in 1995 at the time that the veteran ceased smoking. It follows, in our view, that factor 5(f)(i) is satisfied because smoking had not ceased prior to the clinical onset of ischaemic heart disease and the veteran was smoking at least five cigarettes per day up to mid-1995.
38. The veteran’s increased smoking was contemporaneous with his operational service and therefore, in our view, related to that service. We are satisfied that clauses 4 and 5 of the Instrument have been satisfied so that the hypothesis is a reasonable hypothesis.
39. The raised facts of the hypothesis are consistent with the found facts. There is no basis whereby we could be satisfied beyond reasonable doubt that the veteran’s death was not war-caused.
40. The decision under review will be set aside and we will substitute a decision to the effect that the veteran’s death was war-caused.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe and Dr KP Kennedy OBE, Member
Signed: Sarah Oliver
AssociateDate of Hearing 2 April 2004
Date of Decision 1 June 2004Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr Smith, Departmental Advocate
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