Seward and Repatriation Commission - [2001] AATA 60

DECISION AND REASONS FOR DECISION [2001] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/286

VETERANS' APPEALS DIVISION       )
           Re      PHYLLIS IRENE SEWARD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date2 February 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – pensions and benefits – War Widow Pension – whether death of veteran war-caused – death from Ischaemic Heart Disease – whether skin cancer connected to death – standard of proof applicable – Statements of Principle considered
Veterans' Entitlements Act 1986 ss. 8, 120, 196
Statements of Principle Nos. 39 of 1999, 26 of 1999 and 46 of 1998

REASONS FOR DECISION

2 February 2001 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Mrs Phyllis Irene Seward (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 16 May 2000 (T2) which affirmed a decision of a delegate of the respondent dated 11 November 1999 (T25) rejecting the death of the applicant's husband Mr Leslie Seward (the veteran) as war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T32), together with three exhibits, one lodged by the applicant (Exhibits A1) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant, who represented herself, assisted by Mr K. Collett, of Legacy. The respondent was represented by Mr G. Doube, a departmental advocate.
The issue before the Tribunal is whether or not the veteran satisfies the relevant Statement of Principles (SoP). The three SoPs raised in this case are SoP Instrument No. 39 of 1999 concerning Ischaemic Heart Disease, SoP No. 26 of 1999 concerning Hypertension and SoP Instrument No. 46 of 1998 concerning Non Melanotic Malignant Neoplasm of the Skin.
history of the application
The veteran was born on 12 May 1911 and served within Australia in the Australian Army from 3 March 1942 until 22 November 1945, constituting eligible but not operational service.
The veteran died on 27 September 1999, aged 88 years. The death certificate (T5/65) lists the cause of death as being:
"PNEUMONIA  4 DAYS
LEFT VENTRICULAR FAILURE (ISCHAEMIC)      YEARS
ISCHAEMIC HEART DISEASE  YEARS
*HYPERTENSION  YEARS"

The applicant submitted a claim to the respondent on 4 November 1999 (T5/51-59) which was rejected by a delegate of the respondent on 11 November 1999 (T25). The VRB affirmed this decision upon review dated 16 May 2000 (T2) and stated (inter alia) in its reasons for decision:
"…
… The applicant contended that the veteran suffered a heart attack because of the distress of being advised of the recurrence of his squamous cell carcinoma. The only factors relating to emotional or stressful situations before the clinical onset of ischaemic heart disease are factors 5(o) and 5(p). However, there is no evidence before the Board that the veteran suffered from panic disorders, phobic anxiety with panic attacks or experienced a severe stressor at the time or immediately before the clinical onset of his ischaemic heart disease in, or about 1987. The Board found that the distress suffered by the veteran in September 1999 does not meet any factor in the Statement of Principles and cannot be causally related to the onset of his ischaemic heart disease or subsequent death.
…"

applicant's evidence

The applicant told the Tribunal that her husband was sent out of Australia during the War, serving on Horn Island in the Torres Strait. She stated that he was exposed to a lot of sun during this posting, submitting a photo of the veteran at that time to demonstrate this point. She further stated that it was this exposure to the sun that led to the veteran's development of squamous cell carcinoma. She strongly believed that the veteran was put at risk by long periods of exposure to the sun on Horn Island.
The applicant stated that shortly prior to his death, the veteran had undergone surgery and subsequent treatment for skin cancer on his scalp. She further stated that the veteran consulted Dr Morgan, Plastic and Reconstructive Surgeon, who informed him of the need for further surgery and treatment. She told the Tribunal that the veteran began to worry about the need to return to hospital for surgery and further treatment and it was two days after being informed of that necessity that he collapsed at home. She gave evidence that the veteran was taken to the Royal Adelaide Hospital, where he spent 8-10 days prior to his death. She subsequently found out that the veteran had suffered a heart attack.
The applicant told the Tribunal that the veteran first commenced having heart problems in 1987, at which time he had a pacemaker inserted.
applicant's submissions
Mr Collett submitted, on behalf of the applicant, that the report of Dr Agrawal dated 26 November 1999 (T29) supports a connection between the stress the veteran was under and his heart attack. That letter stated:
"Leslie Seward has been a patient at this practice for over 30 years and was treated on numerous occasions by several of my predecessors for recurrent solar Keratoses on face, scalp and for that matter all over his body.
This was the direct result of exposure to continuous unprotected sun, over a period of time which I presume had occured [sic] during his war service while stationed on Horn Island.
A few years ago, as a result of solar Keratoses, he had developed extensive/deep squamous cell carcinoma on his scalp and this had required extensive surgery and radiotherapy some 12 months ago. This had caused severe stress and his general health had deteriorated significantly ever since.
Unfortunately, his scalp cancer had recently recurred and he was advised further surgery. This had caused further acute distress and shock and Mr. Seward had a Heart attack a day later which he did not survive.
I therefore believe that Mr. Seward's death was in some way related to his war related insults/injuries."
Mr Collett referred to the definition of "death from non melanotic malignant neoplasm of the skin" contained in SoP Instrument No. 46 of 1998 which includes death from a terminal event or condition that was contributed to by the person's non melanotic malignant neoplasm of the skin, and submitted that the veteran's scalp cancer condition caused the stress which contributed to the veteran's heart attack.
Mr Collett compared the circumstances in this case to a hypothetical case of a veteran with a war-caused hearing problem who is hit by a bus that the veteran did not hear coming. In that case, he submitted that whilst the cause of death would be listed as being as a result of the injuries sustained being hit by the bus, the war-caused hearing problem would be a contributing factor to the death. He submitted that in a similar vein, the fact that the skin cancer of the veteran does not appear on the death certificate does not mean that it was not a contributing factor to the veteran's death.
respondent's submissions
Mr Doube submitted, on behalf of the respondent, that the veteran is unable to satisfy the SoP factors for Ischaemic Heart Disease, which is the cause of death in this case. He further submitted that whilst the respondent conceded that if the veteran had submitted a claim for his carcinoma, the respondent would have accepted it as being war-caused, there is no mention of the veteran's skin problems on the death certificate.
Mr Doube submitted that the clinical onset of Ischaemic Heart Disease was in 1987 and that there is no evidence of a severe stressor, panic disorder, phobic anxiety or panic attacks prior to the clinical onset. He further submitted that the clinical worsening provisions are not applicable because the Ischaemic Heart Disease only arose many years after the veteran's war service.
discussion and findings
Sub-section 120(4) of the Act requires the Tribunal to be reasonably satisfied as to all matters in coming to its decision. "Reasonable satisfaction" means that the Tribunal is required to be satisfied, on the balance of probabilities, that the circumstances of the veteran's death in this case have an established connection to the veteran's war service. Section 120B of the Act applies to cases of eligible war service, with sub-section 120B(3) of the Act providing:
"In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."
The Tribunal must be reasonably satisfied therefore, that the material before it links the veteran's death and his war service, and that the relevant SoP is satisfied. SoPs are generated by the Repatriation Medical Authority in cases where it is considered that it is more probable than not that a particular kind of injury, disease or death can be related to eligible war service pursuant to sub-sections 196B(3) or 196B(12) of the Act.
Mr Doube contended that the only relevant SoP was that relating to Ischaemic Heart Disease, as that was the primary cause of death as listed on the death certificate (T5/65). Whilst the Tribunal concurs that the medical evidence clearly demonstrates that the veteran died from Ischaemic Heart Disease, it does not consider that the SoP relating to Non Melanotic Malignant Neoplasm of the Skin can be ignored in this case. The Tribunal has also given attention to the SoP concerning Hypertension, as that appears under cause of death on the death certificate (T5/65).
Consideration must be given to SoP No. 46 of 1998 due to the broad scope of the definition of "death from non melanotic malignant neoplasm of the skin" to be found in that SoP. That definition is inclusive of death from another cause to which there is a contribution by the non melanotic malignant neoplasm of the skin. There is a hypothesis raised in this case under that applicable SoP, namely, that the veteran's squamous cell carcinoma and the subsequent need for surgery and other treatments caused severe stress which contributed to his death by heart attack (which in turn related to his Ischaemic Heart Disease). The Tribunal must therefore consider whether the hypothesis is consistent with the SoP, and then further consider whether or not, on the balance of probabilities, there is a connection between the death and the war-caused injury.
There is a hurdle for the applicant however, in that the veteran never submitted a claim in respect of his squamous cell carcinoma. Mr Doube conceded that had a claim been made in respect of squamous cell carcinoma, the respondent would have accepted it as war-caused. He did not oppose that the Tribunal should so find that the veteran's squamous cell carcinoma was connected to the circumstances of the veteran's service. For the purposes of this decision alone, the Tribunal so finds by consent.
Accordingly, the question for the Tribunal is whether or not there is a connection between the veteran's death and his war-caused injury (being squamous cell carcinoma). The ultimate cause of death is recorded in Dr Agrawal's report dated 26 November 1999 as being from a heart attack "which he did not survive" (T29). Dr Morgan treated the applicant as and from 23 October 1998 and records in his report dated 16 November 1999 (T28) (inter alia):
"…
I understand that Mr. Seward was exposed to continuous and excessive amounts of sun when he was stationed on Horn Island during World War 11. This would certainly fit in with the extensive sun damage over the whole of his scalp and face. I consider that if he did not have the further excision of the tumour of his scalp this would have been the cause of his demise rather than the heart attack which he had. I believe the change he showed on the exposed areas was due to previous excessive sun exposure."
The only medical evidence before the Tribunal which supports the hypothesis is the report of Dr Agrawal dated 26 November 1999 (T29). That report only goes so far as to note that the veteran suffered acute distress and shock after discovering that he needed further surgery, and had a heart attack a day later, concluding that the veteran's death was "in some ways" related to his war related insults/injuries.
The Tribunal has a preponderance of other medical evidence which suggests that the applicant had ongoing heart problems from at least the mid to late 1980s. In 1987 he had a pacemaker inserted. In a series of reports in 1995-96, Dr B. Heddle, Cardiologist, reports on various problems the veteran was having with chest pains and with his pacemaker (T20, T21, T22, T23 and T24). The Tribunal is also cognisant of the veteran's age at the time of his death (88 years).
Bearing in mind all of the circumstances surrounding the veteran's death, including his age, his general health and history of heart problems, the Tribunal considers that it would be reasonable to conclude that in the absence of any skin cancer, he most probably would have had a heart attack in any event. The factors which must be weighted most heavily in this case are his age and his long history of heart problems.
Whilst the diagnosis and treatment for his squamous cell carcinoma may have contributed "in some way" to his general anxiety levels, and this may have contributed to his heart attack, the possibility that something might be a contributing factor is not sufficient to satisfy the Tribunal on the balance of probabilities. That standard of proof requires the Tribunal to be satisfied that it is more probable than not that the veteran's skin cancer condition contributed to his death from a heart attack. On the evidence before the Tribunal, that hypothesis remains in the realms of possibility not probability. Accordingly, the Tribunal so finds that the SoP Instrument No. 46 of 1998 relating to Non Melanotic Malignant Neoplasm of the Skin is not satisfied.
In relation to the SoP concerning Ischaemic Heart Disease, the applicant must satisfy at least one of the factors set out in clause 5. Clause 6 directs that paragraphs 5(r) to 5(zg) only apply where the heart disease was suffered before or during the relevant service. In this case, the heart disease was clearly suffered after service, and so, the Tribunal only considers paragraphs 5(a) to 5(q).
Paragraph 5(a) is not applicable, as it is clear from the clinical records dated 12 March 1987 (T11/78) that the veteran had no prior history of hypertension before the clinical onset of Ischaemic Heart Disease. There is no evidence before the Tribunal that would satisfy paragraphs 5(b), (c), (d), (g), (h), (j), (k), (m), (n) or (q) and the Tribunal so finds. In respect of the smoking related paragraphs 5(e) and 5(f), the clinical records from 1985 indicate that the veteran quit "40 years ago" (T7/70) and the Tribunal finds that neither paragraph is satisfied.
There is no evidence that he experienced a severe stressor prior to the clinical onset of his heart disease, nor that he suffered from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of that disease. Accordingly, the Tribunal so finds that paragraphs 5(o) and (p) are not satisfied. In the absence of any of the factors listed in clause 5 of the SoP, the applicant cannot satisfy the SoP, and the Tribunal so finds that SoP Instrument No. 39 of 1999 relating to Ischaemic Heart Disease is not satisfied.
With respect to SoP Instrument No. 26 of 1999 concerning Hypertension, paragraphs 5(n) to 5(x) only apply to hypertension suffered or contracted before or during the relevant service of the veteran. As is clear from the clinical records dated 12 March 1987 (T11/78) the veteran did not have a prior history of hypertension, and so paragraphs 5(n) to 5(x) are not applicable in this case. There is no evidence before the Tribunal that would support a hypothesis pursuant to any of paragraphs 5(a) to 5(m). Accordingly, the Tribunal finds that SoP Instrument No. 26 of 1999 concerning Hypertension is not satisfied.
The Tribunal concludes therefore, that there is no evidence in this case that supports the hypothesis raised by the applicant to the Tribunal's reasonable satisfaction. There is also no evidence which satisfies any of the applicable SoPs and in that event, the Tribunal must affirm the decision under review.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  12 January 2001
Date of Decision  2 February 2001
Counsel for the Applicant        In person with Mr K. Collett (Legacy)
Solicitor for the Applicant         -
Counsel for the Respondent    Mr G. Doube
Solicitor for the Respondent    DVA