Shields and Repatriation Commission

[2004] AATA 616

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 616

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/657

VETERANS’ APPEALS DIVISION		)
Re		MARY NEAH SHIELDS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Associate Professor B.J. Morley, RFD, Member

Date 18 June 2004

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Sidney Norman Shields was war- caused pursuant to section 8 of the Veterans’ Entitlements Act 1986 with effect from 8 November 2000.

.................(sgd).............................

MEMBER

CATCHWORDS

Veterans Affairs-  war widow pension- whether veteran’s death war-caused- ischaemic heart disease - artrial fibrillation –Statement of Principles satisfied - decision set aside

Veterans’ Entitlement Act 1986 s 8

REASONS FOR DECISION

1. This is a review of a decision by a Delegate of the Repatriation Commission dated 15 January 2001, and affirmed by the Veterans' Review Board on 28 April 2003, refusing the claim of the Applicant, Mary Neah Shields that the death of her late husband, veteran Sidney Norman Shields, was related to his war service, within the meaning of section 8 of the Veterans' Entitlement Act 1986 ("the Act").

2. The veteran was born on 17 September 1918 and served in the Australian Army during World War II from 20 January 1941 to 5 May 1945. There is no dispute that the veteran's full-time service was operational service within the terms of section 6A of the Act.

3. At this Tribunal hearing the Applicant was represented by the Rev Jack Hammer and the Commission was represented by Departmental advocate Mr Malcolm Smith.

4. The documents lodged in the Tribunal according to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents, and marked as Exhibit R1.

5. The veteran died on 7 November 2000, the Death Certificate recording the causes of death as pneumonia of three days' duration, and pulmonary fibrosis of six weeks' duration, as certified by Dr Lee Rafter (Exhibit R1 Folio 11).

6.         The veteran had no disabilities accepted as being service related.

7. The standard of proof applicable to the veteran's operational service is that of reasonable hypothesis. The standard of proof relating to the establishment of the cause of the veteran's death is reasonable satisfaction.

8. The facts accepted by the Commission were that the Applicant began keeping company with the veteran in 1937, that they married in 1942, that he commenced smoking in 1941, that he ceased smoking in 1971, and that in that time he smoked the equivalent of 60 pack-years.

9. The Applicant told the Tribunal that, after the war, she and her husband lived at Mungindi for about 15 years, where he worked for Moree Shire. The veteran's chest pains, which would go into his throat, started in the '60s after they moved to Casino, where he worked as a greenkeeper. He consulted a Dr Dagg, who diagnosed angina, and prescribed tablets, which she would give him for these pains. When they moved to Tweed Heads, he changed from greenkeeping, to digging and drain work for a developer, where they lived for another 15 years. There he consulted another doctor, Dr Folent, who also told him he had angina. He had breathing problems and chest pains when he retired, and applied for the Service Pension because he did not feel well. At that time "his exercise regime was very limited". However he applied for the Service Pension on the basis of his age, not invalidity. In his later years he experienced chest pain when he exerted himself, but infrequently. After Tweed Heads they lived on a son-in-law's farm in Clifton, until it was sold, then to move to nearby Allora. She said that the veteran would only visit a doctor if he had to, but he made these visits more frequently after coming to Clifton and Allora, because he was deteriorating.

10.      The medical evidence available to the Tribunal consisted of:

(a) Dr Lee Edward Rafter, the veteran's treating Respiratory Physician of Toowoomba, gave telephone evidence, and had prepared three reports, of 8 November 2000 to the veteran's Allora general practitioner Dr Heidi Dreiling (Exhibit R1 Folios 9-10), of 5 January 2001 to a Department of Veterans' Affairs Delegate (Exhibit R1 Folio 21), and of 9 October 2003 to Department of Veterans' Affairs External Review Officer Mr Malcolm Smith (Exhibit R2).

(b) Dr Peter Andrew Grant, Senior Medical Officer Compensation for the Department of Veterans' Affairs Queensland Office, also gave telephone evidence, and had provided a report of 14 October 2003 to Mr Malcolm Smith (Exhibit R3).

(c) Dr R J Kirk, General Practitioner of Windang, New South Wales, had provided a report dated 18 February 2004 to the Department of Veterans' Affairs (Exhibit A1).

11. In his first report, Dr Rafter advised Dr Dreiling that, following the veteran's admission into Toowoomba's St Vincent's Hospital on 30 October 2000, he died on 7 November. He had diagnosed the veteran with:

1. Acute overwhelming pneumonia, leading to death

2. Pulmonary fibrosis

3. Diabetes Insipidus

4. Rapid Atrial fibrillation

5. Hypothyroidism.

12.      He recorded that:

"This 82 year old gentleman became unwell in September for the first time with lethargy, malaise, increased thirst and dyspnoea. The breathlessness had been predominantly on exertion since September, associated with pain in the anterior chest and into the neck. This pain had been present for many years, of quick onset and settling. There was [sic] no other features of infection, with no cough, phlegm or fever. His exercise tolerance had previously not been limited and he had no systemic symptoms...."

"... His chest X-Ray previously showed features consistent with pulmonary fibrosis, confirmed on high resolution CT (lung scan) and prior to biopsy, he developed acute onset of a high fever and dyspnoea and developed progressive bilateral pneumonia."

"His course was an aggressive one with high fevers and he became profoundly dyspnoeic with O₂ Saturations of 70% on a re-breathing mask... primarily he had had high-dose antibiotics without good effect and I think he developed an ARDS (acute respiratory distress syndrome) - like picture and succumbed of hypoxaemia...".

13. Dr Rafter's second report to a Departmental Delegate briefly referred to the matters of the first report, and added that, before the veteran's death, his sputum had cultured an atypical bacterium which he considered was an incidental finding.

14. In his third of report, to Mr Smith, Dr Rafter first specified that the veteran's pneumonia was unrelated to his pulmonary fibrosis. He went on:

"Atrial fibrillation was present at the time of his admission to hospital on his ECG. His ECG showed a left bundle branch block in atrial fibrillation with a rate of approximately 80 beats per minute. He was on no drugs to control heart rate and the GP's referral letter did not record previous atrial fibrillation. I cannot comment on the duration of this is not having met him before."

15. In response to Mr Smith's question whether heart disease contributed to the veteran's death Dr Rafter made the following comments:

"... My notes at that time record him as having breathlessness on exertion from my history having begun in September 2000 some 6 - 8 weeks before. He did describe long-standing episodic pains in the chest and into the neck which he recorded as being present for years, of sudden onset which would settle spontaneously. He did not report his exercise tolerance as being limited by chest pain previously or that the pain was related to exercise."

"He did describe progressively increasing breathlessness for approximately 6 weeks before his admission to hospital at St Vincent's."

"As such I am unable to confirm the family's history of ischaemic heart disease, which has subsequently been reported to me. I did not get a history of exercise limitation as such at the time of admission but instead of exertional breathlessness."

16.      Dr Rafter concluded this report:

"His death in hospital primarily was as a result of respiratory failure. He may have had underlying heart disease which contributed at the end, in the context of a left bundle branch block, atrial fibrillation and his age, but the primary issue leading to death unfortunately was acute infection complicating pulmonary fibrosis".

17. In his telephone evidence Dr Rafter stated that the veteran died from pneumonia. When he examined the veteran following his admission, and studied his x-rays, he found "features of pulmonary fibrosis, the cause of which can only be clarified fully with biopsy".

18. When he was asked whether any heart disease contributed significantly to the veteran's death, Dr Rafter answered that, when admitted, his ECG was abnormal with left bundle branch block, which "is usually considered to be some indicator of an underlying heart disease, but it can also occur in normal people". He said that the veteran described to him chest pain and neck pain "on and off for years, often lasting for a short period of time, but which was unrelated to exertion and he described having a normal exercise tolerance only four to six weeks earlier". He had atrial fibrillation, which responded to medication, although it was still present when the veteran was dying. He said that atrial fibrillation "often happens when people are very sick, and with an underlying lung disorder, it's an acknowledged association in people with acute severe or chronic severe lung disease". When asked if the atrial fibrillation contributed to his death, he said that it was "a secondary phenomenon" and that he did not think it was a major contribution to the cause of his death. He said that the veteran had not been on any cardiac medication before his admission. He added that, if the veteran had had ischaemic heart disease going back to 1966 he doubted that it would have remained untreated until the year 2000. However, in answer to a question from the Tribunal whether any element of ischaemic heart disease possibly contributed to the veteran's ECG changes at the time of his admission, he said that this was possible, and that he could not exclude it.

19. With regard to the veteran's lung disease, Dr Rafter told the Tribunal that the veteran's clinical signs and changes on his CT scan of his chest were "very typical of interstitial lung disease of which pulmonary fibrosis is a generic term", and that he could not think of an alternative explanation of those features. He went on to tell the Tribunal that, of the "long list of causes" of pulmonary fibrosis, smoking was not one.

20. Dr Grant in his report stated that the veteran's terminal illness was unequivocally that of acute respiratory failure from pulmonary fibrosis and complicated by acute bilateral pneumonia. He noted that Dr Rafter, in his first report, although recording the veteran's atrial fibrillation when admitted into St Vincent's Hospital, did not mention ischaemic heart disease as being active at the time of the veteran's death. In his view Dr Rafter's reference in his third report to the veteran's intermittent chest pains, not related to exercise, was not sufficient to conclude that the veteran had ischaemic heart disease. He also concluded that, despite the veteran's previous heavy smoking, which he estimated at 60 pack-years, he had no "stigmata" of lung or heart disease attributable to this. He remarked: "Onset of atrial fibrillation in the presence of progressive acute respiratory failure in the absence of any underlying heart disease is [a] well-described event in authoritative medical literature, with the relative risk of atrial fibrillation developing increased by concurrent pneumonia". He opined that the reports of Dr Rafter did not support the presence of ischaemic heart disease prior to the veteran's terminal illness or actively contributing to his death.

21. In his oral evidence Dr Grant said that he could only comment on any contribution to the veteran's death by heart disease from the notes available to him and Dr Rafter's opinion. He remarked that angina is not necessarily life-threatening, but the natural course is that, over time, the symptoms occur more often and/or become more serious, leading to investigations and to the diagnosis being made. Under cross examination he said that it was possible that the veteran may have had ischaemic heart disease for 30 years, but "fairly unlikely".

22. In his report Dr Kirk stated that he had married the veteran's daughter, and had known the veteran since he graduated in medicine in 1964. He described him as being "an extremely heavy smoker", and that he "lectured him frequently" about its dangers. He had had frequent bouts of "cough and ill-health" which he attributed to this. He had no doubt that his smoking had been a contributing factor to his ultimate death from a respiratory illness.

23.      The Tribunal first addressed the questions of the veteran's diagnoses.

24. In his first report, Dr Rafter has recorded the veteran's diagnoses at the time of his final illness as:

1. Acute overwhelming pneumonia, leading to death

2. Pulmonary fibrosis

3. Diabetes Insipidus

4. Rapid Atrial fibrillation

5. Hypothyroidism.

25. Of these, for pneumonia, diabetes insipidus, and hypothyroidism, no argument has been presented to the Tribunal that these were related to the veteran's war service.

26. The Applicant has submitted that there is an hypothesis connecting the veteran's pulmonary fibrosis with his commencing smoking during his war service.

27. Whether that hypothesis is reasonable was agreed to be determined in accordance with to Statement of Principles Instrument No 15 of 1998. This refers to Idiopathic Fibrosing Alveolitis, which, in paragraph 2 (b) is said to mean "a chronic diffuse interstitial lung disease of unknown origin, characterised pathologically by inflammation and fibrosis of the lung parenchyma". This accords with Dr Rafter's evidence to the Tribunal by telephone that his findings in the veteran in his final illness, including on his lung function tests, and his CT scan of his chest, "were very typical of interstitial lung disease of which pulmonary fibrosis is a generic term". The only applicable factor in this Statement of Principles is that in paragraph 5(a) - that is, "inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis". The Tribunal has had no evidence presented to support this, and therefore is satisfied that the material before it does not raise a reasonable hypothesis connecting the veteran's lung disease with the circumstances of his service.

28. The Applicant also has submitted that there is an hypothesis linking the veteran's smoking to possible ischaemic heart disease. In this context, the veteran's atrial fibrillation and possible associated heart disease were considered by Dr Rafter in his third report, by Dr Grant in his report, and in the evidence both doctors gave to the Tribunal.

29. Dr Grant suggested that his atrial fibrillation might be explained, without any underlying heart disease, by the veteran's progressive acute respiratory failure, the risk of this being increased by his concurrent pneumonia. However in his oral evidence, Dr Grant stated that, although he considered the veteran's many years of chest pain to be "fairly unlikely" to be due to ischaemic heart disease, it was possible. Dr Rafter agreed that atrial fibrillation often occurs in conjunction with acute or chronic severe lung disease. However, although he was unable to confirm the family's history of ischaemic heart disease in the veteran, in his oral evidence he agreed that his atrial fibrillation and left bundle branch block, as shown on his ECG on admission into St Vincent's Hospital, indicated that he possibly had ischaemic heart disease at that time, and that he could not exclude it. The Tribunal has noted that no mutually exclusive argument has been presented, that it was either his acute respiratory failure with pneumonia, or his possible ischaemic heart disease, that caused his atrial fibrillation; in other words, both causes could have been in effect during his terminal illness.

30. The Tribunal is satisfied that this medical evidence points to a hypothesis that, in that final illness, the atrial fibrillation suffered by the veteran was due to ischaemic heart disease. The Tribunal leaves open the question of whether the veteran's many years' history of chest pain was or was not due to ischaemic heart disease; it is merely concerned with whether the veteran may have had ischaemic heart disease as a cause of his atrial fibrillation in his final illness.

31. To determine whether this hypothesis is reasonable, the Tribunal has referred to the Statement of Principles concerning Atrial Fibrillation Instrument No 19 of 2003. Factor 5(b) states that a reasonable hypothesis has been raised connecting atrial fibrillation with the circumstances of a person's relevant service if that person was "suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation". Accordingly the Tribunal is satisfied that the material before it raises a reasonable hypothesis connecting the veteran's atrial fibrillation with his service through ischaemic heart disease.

32. From this, the Tribunal has referred to Statement of Principles for Ischaemic Heart Disease Instrument No 53 of 2003. Factor 5(e)(iii) states that a reasonable hypothesis has been raised connecting ischaemic heart disease with the circumstances of a person's relevant service "where smoking has ceased prior to the clinical onset of ischaemic heart disease, smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease". Thus the Tribunal is satisfied that this material raises a reasonable hypothesis connecting the veteran's ischaemic heart disease with his service.

33. The Tribunal now examines whether the veteran's death was due to war service related causes. His Death Certificate records that he died from pneumonia and pulmonary fibrosis. However the Tribunal has already determined that there is no reasonable hypothesis connecting the veteran’s lung disease with the circumstances of his service. With regard to any part played by ischaemic heart disease, Dr Rafter has said in his oral evidence that he did not think that the veteran's atrial fibrillation "was a major contribution to cause of death", but does not exclude it. Moreover, the Tribunal notes that he did not say that his ischaemic heart disease was no longer in effect at the time of his death; and he has stated in the final paragraph of his third report "(the veteran) may have had underlying heart disease which contributed at the end".

34. From these simple statements by the late veteran's treating Respiratory Physician, the Tribunal finds that, it cannot be satisfied beyond reasonable doubt, that there is no sufficient ground for determining that the veteran's death on 7 November 2000 was not war-caused.

35. Accordingly the Tribunal sets aside the decision under review and substitutes a decision that the death of Sidney Norman Shields was war caused. The date of effect of this decision is 8 November 2000.

I certify that the 35  preceding paragraphs are a true copy of the reasons for the decision herein of  Associate Professor B.J. Morley, RFD, Member

Signed:         .....................................................................................
  Catherine O’Donovan Associate

Date/s of Hearing   22 April 2004
Date of Decision  18 June 2004            
Representative for the Applicant    Rev Jack Hammer
Advocate for the Respondent         Mr Malcolm Smith