Rowe and Repatriation Commission
[2007] AATA 1992
•29 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1992
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500888
VETERANS’ APPEALS DIVISION ) Re MARJORIE ALICE ROWE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date29 November 2007
PlaceMelbourne
Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – widows application – smoking history and connection to service conceded – only issue – kind or cause of death – whether death by ischaemic heart disease or chronic obstructive pulmonary disease as asserted by the widow or by pulmonary fibrosis as argued by the respondent and as recorded on the death certificate – extensive medical evidence – decision of Veterans' Review Board affirmed
Veterans’ Entitlements Act 1986(Cth) s 120A(2) and (4), s 8(1)(f)
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Codd (2007) 95 ALD 619
Byrne v Repatriation Commission [2007] FCAFC 126
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth [2001] FCA 1421REASONS FOR DECISION
29 November 2007 Mr John Handley, Senior Member 1. The evidence in this application was heard over three days in Mildura and in Melbourne. A number of specialist medical practitioners gave evidence and the written medical and clinical data was voluminous. Through the goodwill of the parties' representatives, the only issue remaining in dispute was the cause of death of the Veteran, the late Vernon Edwin Rowe.
2. This appeal was lodged by Mrs Rowe, his widow. She challenged a decision made by the Veterans' Review Board (VRB) which affirmed a decision previously made by the respondent denying her application. The late Mr Rowe was a member of the Royal Australian Air Force (RAAF) between 1942 and 1945. He served in Australia, Canada and the United Kingdom. At his death he was receiving pension at 100 per cent of the general rate for the accepted conditions of anxiety neurosis, bilateral sensori-neural loss, ischaemic heart disease and bilateral acquired cataracts. Rejected disabilities were osteoarthritis of the knees, gout, fibrositis, infectious mononucleosis and interstitial fibrosing lung disease.
3. The death certificate recorded the causes of death as pulmonary fibrosis – end stage (18 months); right heart failure (months); shingles (24 hours).
4. It was alleged on behalf of Mrs Rowe that the kind of death (refer Repatriation Commission v Hancock [2003] FCA 711 and s 120A(2) of the Veterans’ Entitlements Act 1986 (the Act) or cause of death, (refer Repatriation Commission v Codd (2007) 95 ALD 619 at paragraph 31) was either ischaemic heart disease or chronic obstructive pulmonary disease or both. During the assessment period, two Statements of Principles (SoPs) have been issued with respect to ischaemic heart disease namely Instruments No 53 of 2003 and No 89 of 2007. The SoP in the assessment period with respect to chronic obstructive pulmonary disease was Instrument No 30 of 2004 entitled Chronic Bronchitis and Emphysema.
5. It was alleged by the applicant that a connection between service and death existed by the consumption of her husband of cigarettes which she also submitted had a connection with service. Each of the above Instruments contains a factor with respect to smoking and a number of pack years. Mr Douglass on behalf of the respondent conceded that a connection existed between service and smoking. He also conceded an increase in smoking by service and the requisite number of pack years.
6. However, it was the case of the respondent that the kind of death of the late Mr Rowe was pulmonary fibrosis. The only Instrument issued during the assessment period with respect to that condition, is No 15 of 1998 entitled Idiopathic Fibrosing Alveolitis. The only factor within it contains no reference at all to cigarette smoking.
7. The only issue therefore to be determined by this review, is the kind of death.
8. It was also submitted by the respondent that despite the condition of ischaemic heart disease being accepted in the Veteran's lifetime, Mrs Rowe was unable to take advantage of the provisions of s 8(1)(f) of the Act, because the deceased did not die from an injury or disease which had been determined to be war‑caused.
dr helen crocker
9. Dr Crocker is a respiratory and general physician practising in Adelaide. She treated Mr Rowe between February and September 2002.
10. Dr Crocker reported that by reason of the deceased suffering from shortness of breath from the mid‑1960s and later having difficulty breathing, a diagnosis consistent with chronic obstructive pulmonary disease could be made, but there was no radiological evidence pointing to it.
11. In evidence, Dr Crocker agreed that the deceased suffered from pulmonary fibrosis evident from lung function tests and from radiological appearances. It was her opinion that the fibrosis could mask the presence of any moderate underlying chronic obstructive pulmonary disease.
12. In cross‑examination, Dr Crocker agreed that the pulmonary fibrosis was the dominant condition suffered by the deceased, that she could not confirm the presence of chronic obstructive pulmonary disease but would not exclude the underlying presence of it, having regard to the smoking history of the deceased. She also agreed that the fibrosis was a progressive condition which would eventually cause the demise of Mr Rowe.
13. When pressed on these issues, Dr Crocker agreed that she had been treating the deceased for pulmonary fibrosis. She held a suspicion of chronic obstructive pulmonary disease but also agreed that breathlessness of itself was not sufficient to cause a diagnosis of that condition.
14. Dr Crocker said that she also arranged for an echocardiogram to be completed by the deceased to determine whether coronary factors had any responsibility for breathlessness. She said that the results of that assessment demonstrated normal ventricular size and hypokinetic systolic function, suggesting either primary or secondary heart failure and a possibility of diffuse ischaemic heart disease which could also explain breathlessness. She did not treat Mr Rowe for ischaemic heart disease nor was she of the opinion that he suffered from it. She did not treat Mr Rowe after September 2002 and was unable to say whether prior to his death in February 2003 he suffered from, or was treated, for ischaemic heart disease.
professor john cade
15. Dr Cade is the Director of Intensive Care at Royal Melbourne Hospital. He has held and continues to hold a number of clinical appointments and professional memberships. His PhD was in respiratory medicine and he has published text books concerning that area of practice. He was engaged by the respondent to provide an opinion and gave evidence in these proceedings.
16. Professor Cade was of the opinion that the cause of death was idiopathic pulmonary fibrosis which he said was irreversibly fatal and patients could expect a life expectancy after diagnosis of between 18 months and three years.
17. Professor Cade was aware of the echocardiogram referred to by Dr Crocker. It was his opinion that the results were not consistent with a diagnosis of ischaemic heart disease. Having reviewed the extensive clinical data lodged in these proceedings and to which he had access, it was his opinion that there was no clinical evidence of ischaemic heart disease being suffered by the deceased during the last 40 years of his life. He noted that the deceased did complain of right sided chest pain shortly prior to death. It was his opinion that pain in that location would not typically suggest the presence of ischaemic heart disease. In the present case, it was his opinion that the right sided chest pain would be consistent with the shingles suffered by the deceased, being a condition well known to cause pain. He said that ischaemic heart disease precipitates central chest pain. Additionally, Professor Cade observed the results of an ECG taken in the 1960s which did not demonstrate the presence of any pre‑existing myocardial infarct. Professor Cade otherwise deferred to the opinions expressed by Professor Harper in a report he provided in these proceedings at the request of the respondent.
18. With respect to the breathlessness suffered by the deceased, Professor Cade was of the opinion that such a condition as described by Mrs Rowe was non‑specific. He said it was appropriate that chronic obstructive pulmonary disease be investigated but on the clinical data he observed, nothing pointed to that condition having existed. He noted that CT scans of 1999 and 2002 demonstrated a significant evolution of the pulmonary fibrosis. He described the fibrosis as an unequivocal diagnosis. He agreed that it would be difficult to disprove chronic obstructive pulmonary disease in the presence of pulmonary fibrosis but said the CT scans did not demonstrate emphysema, other lung function tests were normal and there was no evidence of purulent sputum. He said those features would need to be present in order to be confident in making a diagnosis of chronic obstructive pulmonary disease.
19. In cross‑examination, Professor Cade said that pulmonary fibrosis is a restrictive condition whereas chronic obstructive pulmonary disease is an obstructive condition. He was asked to comment on the results of lung function tests found within the clinical notes of Dr Crocker which have handwritten notes recording mild obstruction without acute reversibility. Moderately severe restriction with marked impairment of gas transfer. They are stable compared to early testing. When Professor Cade examined the clinical data against the five measured spiromatory indicators, he said the handwritten opinion was patently incorrect and a mistake. He said the FEV 1 (forced expiry volume in first second of expiration) data can be an indicator of obstruction but it needs to be considered in conjunction with the clinical data against the FEV 1 – VC (forced vital capacity) ratio which, in his opinion, did not demonstrate obstruction. Indeed it was his opinion when interpreting the clinical data that there was significant shrinkage of the lungs pointing to a severe restriction by the pulmonary fibrosis and not to an obstruction by chronic obstructive pulmonary disease. He noted that the clinical data against the PEF (peak exploratory flow) and the clinical data against the DLCO (diffusing capacity for CO2) all indicate oxygen transfer in the lungs at 15 to 30 per cent above normal. However, when the TLC (total lung capacity) clinical data is examined, there was obvious evidence of restriction of the lungs because the measured capacity was 3.3 whereas there should have been a finding of 5.6. When pressed on his interpretation of the data, having regard to the handwritten comments on results of the lung function test, Professor Cade reaffirmed that the comments expressed were patently incorrect. Additionally, he said it is not a case of me disagreeing with it, it’s a mistake.
20. Professor Cade agreed that it was not possible to exclude the presence of chronic obstructive pulmonary disease but said that the degree would be too mild to be apparent on the lung function tests, especially in the presence of a severe chronic progressive fatal lung disease (pulmonary fibrosis). He said to attribute death by chronic obstructive pulmonary disease over the presence of pulmonary fibrosis would be speculative and whilst it cannot be excluded, there was no evidence to support it.
21. With respect to ischaemic heart disease, Professor Cade was aware of a chest X-ray of February 1999 and a subsequent CT scan. He acknowledged that the report of the radiologist following the chest X-ray concluded that there was evidence of left ventricular failure however, it was his opinion that that diagnosis was incorrect because there was no evidence to support it by subsequent CT scan. He said that a CT scan is the gold standard for imaging of the lungs and a chest X-ray had considerable limitations of definition and comprehensiveness. Additionally, he pointed to the echocardiogram of March 2002 which pointed to mild impairment of left ventricular function as opposed to left ventricular failure. The presence of hypokinesis, he said, was an indicator of function rather than failing and by that condition having been reported, it was his opinion that the deceased's heart was not contracting as vigorously as it should.
dr richard Byron Collins
22. Dr Byron Collins is a forensic pathologist who provided two reports at the request of the applicant.
23. He noted the clinical data from Dr Cleary who treated the deceased in the late 1950s and early 1960s and from Drs Russell and Evans from Adelaide who also treated the applicant. He thought the symptoms they described of the deceased could be ischaemic in origin although he acknowledged that the complaints of breathlessness, whilst typical of ischaemic heart disease, might be explained by other causes.
24. When he was asked to consider the complaints of the deceased in 2001 of chest pain and being observed rubbing his chest in the presence of breathlessness, Dr Byron Collins said that it may indicate ischaemic heart disease or it may be explained by the presence of pulmonary fibrosis. He was aware of the findings of a plain X-ray of 26 February 1999 (where left ventricular failure was reported), a subsequent CT scan (where left ventricular failure was not reported) and the echocardiogram that was arranged by Dr Crocker. He said that left ventricular failure is typically seen in a person with ischaemic heart disease and the radiologist who interpreted the CT scan may not have reported on coronary function because he may have been directed to report lung function only. He concluded that there were two significant pathologies operating in the deceased involving the cardiovascular and respiratory system, both of which could affect heart function and could contribute to heart failure. It was his opinion that a person suffering from fibrotic lung disease could have death hastened by ischaemic heart disease. Whilst acknowledging that it would be expected that the deceased would have eventually died from fibrotic lung disease, the shortness of breath reported by the deceased may be related to the pulmonary fibrosis or it could, at least in part, be attributed to the ischaemic heart disease.
25. Dr Byron Collins took issue with a number of opinions expressed by Professor Cade. Whilst he agreed that the ejection fraction of 48 per cent found at echocardiogram on 4 March 2002 was not an indicator of left ventricular failure, it was his opinion that that percentage was not optimal and left ventricular failure could not be excluded. He disagreed with the opinion of Professor Cade that the deceased suffered right heart failure which would be inconsistent with ischaemic heart disease. It was his opinion that right heart failure would be consistent with pulmonary fibrosis but he remained of the opinion that there was evidence of left heart failure either as a consequence of right heart failure or a consequence of ischaemic heart disease. Additionally, it was his opinion that whilst pulmonary fibrosis is a fatal disease, the presence of ischaemic heart disease and the left ventricle being compromised by right ventricular failure also contributed to the demise. Dr Byron Collins also disagreed with the manner in which ECGs are to be interpreted. Unlike the opinions expressed by Professor Cade, it was his opinion that a prior infarct would not necessarily be apparent on a subsequent ECG. He said that it is not surprising that the subsequent ECGs were normal because this man had been on appropriate therapy. He said that an ECG is not one hundred per cent reliable but agreed with a proposition put to him that a normal ECG does mean a normal heart in 80 per cent of the cases.
26. When asked to comment upon the absence in any of the clinical notes of a diagnosis or treatment associated with ischaemic heart disease in the last 20 years of the deceased's life, Dr Byron Collins said that whilst that condition of itself would not have been fatal, he would not exclude the presence of ischaemic heart disease as a contributor to heart failure from which, in his opinion, the deceased died. When asked whether there was material sufficient to point to it on the balance of probabilities, Dr Byron Collins replied yes, may be there is. He acknowledged that the clinical signs as understood by him had not been diagnosed or treated but said that ischaemic heart disease could not be excluded and there was a reasonable possibility that it contributed to death in a significant way.
dr aubrey pitt
27. Dr Pitt is a cardiologist and formerly the Director of Cardiology at the Alfred Hospital in Melbourne.
28. He reviewed the extensive documented clinical data lodged in these proceedings and was of the opinion that the reports of Drs Evans, Cleary and Russell pointed to the deceased having evidence of ischaemic heart disease in the 1950s and the 1960s. Additionally, it was his opinion that the complaints of chest pain then made were typical of angina which, in his experience, causes variations in ECGs. Accordingly, he was not troubled by some ECGs not demonstrating cardiac abnormalities. Indeed it was his opinion that when angina is transient it was very suggestive of the presence of ischaemic heart disease.
29. Dr Pitt was aware of the echocardiogram reporting an ejection fraction of 48 per cent. He said that finding was mildly abnormal, because the normal fraction would be 50 per cent, but nonetheless he said the finding pointed to left ventricular failure and the most likely cause of it in a person who was then 77 years of age was ischaemic heart disease. He said that whilst the pulmonary fibrosis would typically affect the right ventricle and the deceased's lungs, strain would be put on the left ventricle and the possibility was therefore raised that the deceased suffered ischaemic heart disease. He regarded this proposition as more than a reasonable hypothesis. Nonetheless he acknowledged that whilst left ventricular failure cannot be excluded, there was no objective evidence for it but it can be hard to diagnose in the presence of severe respiratory disease and respiratory failure. He thought that ischaemic heart disease contributed to death by hastening it. He added, I can't say by what amount but I can only state that I believe it is a reasonable hypothesis and I think it is more than a reasonable hypothesis, indeed on the balance of probabilities I think it likely that he had ischaemic heart disease.
30. The attention of Dr Pitt was directed to an opinion expressed by Dr Bowman in 1978 who reported heart pain and difficulty breathing. His opinion was also directed to the echocardiogram of 2002 which he said demonstrated mild impairment of ventricular function. Dr Pitt said the shortness of breath in 1978 probably was indicative of the early onset of his pulmonary condition and the shortness of breath in 2002 was more likely to have been the result of his pulmonary condition.
31. In cross‑examination Dr Pitt disagreed with the opinions expressed by Professor Cade with respect to interpretation of ECG reports. He said in his experience, 50 per cent of persons who have documented severe coronary artery disease have a normal ECG when it is taken at rest, and 10 per cent of patients who have suffered an infarct have a normal ECG. Dr Pitt thought that it was unlikely that the deceased suffered an infarct in 1966 when he was then under the care of Dr Russell who then reported that Mr Rowe was suffering from pre‑infarction angina. He said that contemporary medical language would refer to such a condition as unstable angina.
32. When asked to comment on the absence of clinical reporting by any of the deceased's doctors for approximately 20 years prior to his death of ischaemic heart disease, Dr Pitt agreed that it would militate against any clinically significant heart disease being present. However, in his experience, doctors would report only on the symptoms made known to them by their patients. He said some patients do not give a comprehensive report or account of their symptoms to their doctors. He agreed that the presence of chest pain and breathlessness were not of themselves diagnostic of heart disease. He also agreed that anxious persons do sometimes complain of chest pain and breathlessness.
33. Whilst not expressing an expertise in the treatment of shingles, Dr Pitt said it was likely that the right sided chest pain noted by clinicians shortly prior to the Veteran's demise was caused by shingles. He said that right sided chest pain is not typical of being cardiac in origin.
34. Dr Pitt said that there was nothing specific that he could point to demonstrating death had been hastened by ischaemic heart disease. He said that he could not say on the balance of probabilities that ischaemic heart disease did contribute to death. He said there was a reasonable hypothesis connecting the coronary disease with death but he was not able to say that it is 51 per cent likely . . .
professor richard harper
35. Professor Harper is a consultant and interventional cardiologist who provided a report at the request of the respondent. He was not called to give evidence. In his report of 11 August 2006 he concluded that a description of the chest pain reported in the 1960s was typical of angina. Early ECG reports were also suggestive of ischaemic heart disease. On that material alone he would have reported that the deceased suffered from ischaemic heart disease. However, he could find nothing in the clinical data where chest pain was reported, until February 2003. In those circumstances he thought it would be extremely unusual for Mr Rowe, in 1966 when aged 42 years, to have angina type pain but then not have any further evidence of heart disease over the next 36 years. Additionally, he could find nothing establishing left ventricular dysfunction and left heart failure. Whilst noting that the echocardiogram of 4 March 2002 demonstrated an ejection fraction of 48 per cent, he reported that would not point to left heart failure. He also noted that Dr Crocker, who is a respiratory physician and who treated Mr Rowe, did not diagnose ischaemic heart disease. On balance it was his opinion that the deceased did not suffer from ischaemic heart disease.
36. Additionally, or in the alternative, even if it was assumed that ischaemic heart disease was present, Professor Harper was of the opinion that it did not contribute to death. He reported that the deceased was admitted to Loxton Hospital in January 2003 where it was noted that he then had end stage lung disease with right heart failure and was admitted for respite and palliative care. He could find no evidence that the deceased suffered a heart attack or that he suffered left heart failure which, he reported, would have supported a diagnosis of ischaemic heart disease hastening the demise. He also noted that a CT scan of May 2002 showed changes consistent with pulmonary fibrosis but nothing which pointed to left heart failure.
conclusion and reasons for decision
37. As indicated at the commencement of these reasons, the only issue in these proceedings is the kind or cause of death. That finding is of fact and is to be made on the balance of probabilities pursuant to s 120(4) of the Act. Only when that finding is made can a SoP be identified and applied (if at all) (refer Byrne v Repatriation Commission [2007] FCAFC 126 at paragraph 34). In making the finding as to the kind or cause of death, regard is not given to a SoP (refer Benjamin v Repatriation Commission [2001] FCA 1879; Fogarty v Repatriation Commission [2003] FCAFC 136; Repatriation Commission v Budworth [2001] FCA 1421).
38. In making the findings which follow, regard has been had to the extensive clinical data and reports lodged by the parties, the evidence heard and the written submissions lodged by both representatives.
chronic obstructive pulmonary disease
39. Dr Crocker, the deceased's treating respiratory specialist thought that a diagnosis of chronic obstructive pulmonary disease could be made but there was no radiological evidence of it. She thought that the pulmonary fibrosis was progressive, that it would eventually cause the demise of Mr Rowe and may have masked the presence of any chronic obstructive pulmonary disease. She agreed in cross‑examination that breathlessness of itself would not be sufficient to permit a diagnosis of that disease.
40. Professor Cade said that he could find nothing upon review of the clinical data pointing to chronic obstructive pulmonary disease having existed. He agreed that it would be difficult to disprove chronic obstructive pulmonary disease in a person with pulmonary fibrosis but said other diagnostic features of emphysema, purulent sputum and lung function tests not indicating obstruction would need to be present for chronic obstructive pulmonary disease to be diagnosed. He was particularly critical of the findings made of a lung function test and said that the data had been erroneously interpreted. He was adamant that the data then obtained pointed to a restriction in lung capacity thereby pointing to the presence of pulmonary fibrosis. He found nothing from the clinical data pointing to an obstructive condition which would point to chronic obstructive pulmonary disease.
41. Dr Byron Collins and Dr Pitt thought that the deceased's complaints of breathlessness were consistent with the pulmonary fibrosis.
42. Having regard to the medical evidence I am unable to find on the balance of probabilities that the deceased did suffer from chronic obstructive pulmonary disease. It may have been present and it may have been masked by the overwhelming effects of the pulmonary fibrosis. But its presence, if any, I think was of such a mild or miniscule degree that a finding could not be made that it caused, contributed to or hastened the death.
ischaemic heart disease
43. Dr Crocker arranged an echocardiogram to determine whether the deceased's breathlessness could be explained by cardiac disease. She did not treat Mr Rowe for ischaemic heart disease nor was it her opinion that he suffered from it. She did not treat him after September 2002 and was unable to say whether he suffered from ischaemic heart disease subsequently and until his death in February 2003.
44. Professor Cade said that the complaints by the deceased to right sided chest pain were inconsistent with ischaemic heart disease and would be consistent with the shingles suffered by the deceased in the period immediately before his demise. He said there was no clinical data pointing to ischaemic heart disease being suffered by the deceased during the last forty years of his life. He was aware of X-rays and CT scans having been taken where it was initially reported that there was left ventricular failure but preferred the images subsequently obtained on CT scan and the results of an echocardiogram of March 2002 which he said pointed to an impairment of left ventricular function as opposed to left ventricular failure.
45. Dr Byron Collins thought that the deceased's breathlessness may, in part, be related to ischaemic heart disease but thought it was more likely to be related to the pulmonary fibrosis. He agreed with an opinion expressed by Professor Cade that left ventricular failure would typically be found in a person suffering from ischaemic heart disease and thought that the absence of such a finding by subsequent CT scan may be explained by the radiologist being asked to report on lung function only as opposed to coronary function. He thought that the deceased may have also suffered right heart failure which of itself would be inconsistent with ischaemic heart disease but remained of the opinion that there was left heart failure either as a consequence of right heart failure or the presence of ischaemic heart disease. He also thought that ischaemic heart disease could have hastened the death which would eventually have occurred from the fibrotic lung disease.
46. Dr Pitt interpreted the reports of the doctors who treated the deceased in the 1950s and 1960s as indicators of the presence then of ischaemic heart disease with the presence then also of angina. He thought that left ventricular failure could not be excluded but agreed that there was no objective evidence for such a diagnosis. Nonetheless, he thought that the deceased did suffer from ischaemic heart disease which contributed to his demise.
47. He acknowledged that there was no clinical reporting for approximately 20 years prior to death by any of the deceased's doctors of ischaemic heart disease. He said that would indicate that the deceased did not have any clinically significant heart disease but he would not dismiss it. He thought that patients sometimes do not report symptoms accurately or at all to their treating doctors.
48. Professor Harper reported that the clinical data and reports produced in the 1960s would alone suggest the presence of ischaemic heart disease but he found nothing in the intervening years prior to death of heart disease being present or being treated. He found nothing which pointed to left ventricular failure and his interpretation of the echocardiogram of 4 March 2002 did not demonstrate left heart failure. Additionally, it was his opinion that even if ischaemic heart disease had been present, it did not contribute to death.
49. On balance, I am unable to find on the balance of probabilities that the deceased did suffer from ischaemic heart disease or if he did, that it contributed to or hastened the death.
50. The opinions expressed and the evidence given by Drs Byron Collins and Pitt were clearly intended to be helpful to the applicant, for which they are to be commended, but they both admitted that their opinions do not meet the requisite standard of proof. Dr Byron Collins thought that may be there was material sufficient to point to ischaemic heart disease contributing to death but acknowledged that some clinical signs had not been diagnosed or treated and there was a reasonable possibility that ischaemic heart disease contributed to death in a significant way. Dr Pitt said in evidence that there was nothing specific that he could point to a contribution to or a hastening of death by ischaemic heart disease and whilst there was a reasonable hypothesis connecting the coronary disease with death, he could not say that it was 51 per cent likely.
51. I prefer the opinions of Professors Harper and Cade. Professor Harper especially is a consultant and interventional cardiologist who thoroughly examined the extensive clinical data and found nothing in the 36 years preceding death pointing to the presence of ischaemic heart disease. The notes from the palliative care facility into which the deceased was admitted made no reference to any coronary catastrophes or anything else which would support a diagnosis for ischaemic heart disease then present and or hastening or contributing to death.
pulmonary fibrosis
52. Having regard to the medical evidence read and heard in these proceedings and to the findings appearing above, I am satisfied and find on the balance of probabilities that the kind or cause of death was pulmonary fibrosis. It contains one factor only which must exist as a minimum before a reasonable hypothesis can be raised connecting service with death. That factor is the inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis. The prior smoking history, conceded by the respondent as related to service, is not relevant in the absence of cigarette smoking being a factor within that Instrument.
53. The applicant therefore cannot succeed in this review.
54. Additionally, and for the above reasons, the provisions of s 8(1)(f) of the Act do not assist the applicant. Despite ischaemic heart disease being accepted in the deceased's lifetime as having been war‑caused, it was not an injury or disease from which the Veteran died.
55. The decision under review will be affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Grace Carney Personal Assistant
Dates of Hearing 13 March, 7 and 8 August 2007
Date of Decision 29 November 2007
Counsel for the Applicant Mr G Chancellor
Solicitor for the Applicant Williams Winter
Departmental Advocate Mr R Douglass
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