The Legal Personal Representative of Florence McNeill and Repatriation Commission

[2007] AATA 1984

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1984

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       No Q 200600727 

VETERANS’ APPEAL DIVISION		)
Re		THE LEGAL PERSONAL REPRESENTATIVE OF FLORENCE McNEILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date23 November 2007 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

………………[Sgd]……………………

RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – widow’s pension – veteran’s eligible war service in Australia with Royal Australian Air Force – prostate cancer the certified cause of death – whether death also attributable to previously accepted disability of chronic bronchitis and emphysema – no material contribution from that condition – death not war-caused – decision affirmed

Veterans’ Entitlements Act 1986 ss 5E, 7, 8, 9, 11, 14, 120, 120B, 196B

Shaw and Repatriation Commission [2005] AATA 354
Repatriation Commission v Hayes (1982) 43 ALR 216

REASONS FOR DECISION

23 November 2007    Mr R G Kenny, Member

Background

1. Kevin McNeill (the veteran) served in the Royal Australian Air Force (RAAF) in World War II. He died on 11 March 2005. On 1 April 2005, a claim was lodged with the Repatriation Commission (the respondent) for a pension under s 14 of the Veterans’ Entitlements Act 1986 (the Act) by Florence McNeill, his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Act.  This was on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act.  That claim was rejected by the Repatriation Commission (the respondent) on 28 April 2005 and then by the Veterans’ Review Board (the Board) on 27 June 2006.  Mrs McNeill sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 6 October 2006.  Following Mrs McNeill’s death, the claim was continued by Brian John Connors as her legal personal representative.

Service

2.      The veteran served in the RAAF from 22 June 1942 until 7 February 1946.  It is common ground that all of his service was in Australia and that it constitutes eligible war service in accordance with s 7 of the Act.

Issues and Legislation

3.          In this case, the death certificate was completed by the veteran’s treating medical practitioner, Dr John Trace.  It nominated the cause of death as:

(a) metastatic carcinoma (10 months);

(b) prostatic carcinoma (10 months)

It is not in dispute and I am satisfied that no causal relationship existed between the veteran’s prostate cancer and his eligible war service.  The respondent has previously accepted that the veteran suffered from chronic bronchitis and emphysema and that this was a war-caused condition.  The claim for the war-widow’s pension is based on the contention that this condition contributed to the veteran’s death. 

4.          Where eligible war service was rendered, the standard of proof applicable to that determination is set out in s 120(4) of the Act.  This requires that the matter be determined to the decision-maker’s reasonable satisfaction.  In order for a death to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. 

5.          Paragraph 8(1)(b) of the Act provides that the death of a veteran shall be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by him.  Pursuant to s 120B(3) of the Act, the decision-maker is to be reasonably satisfied that the death was war-caused only if the material raises a connection between the death and some particular service rendered by the person.  Also, where a Statement of Principles has been determined by the Repatriation Medical Authority (RMA) under s 196B(3) or (12) of the Act, such Statement of Principles must uphold the contention that the death is, on the balance of probabilities, connected with that service.  The relevant Statement of Principles for chronic bronchitis and emphysema is Instrument No 31 of 2004.

6.          Under s 8(1)(f) of the Act, death of a veteran will be accepted as being war-caused if the injury or disease from which the veteran died is one that has been determined in accordance with s 9 of the Act to have been war‑caused.  A note to s 8 of the Act sets out the effect of paragraph (1)(f) thereof.  It is that, if the veteran died from an injury or disease that has already been determined by the respondent to be war‑caused, the death is to be taken to have been war‑caused; there is no requirement to relate the death to eligible war service rendered by the veteran; and s120B of the Act does not apply.  In this case, chronic bronchitis and emphysema has been determined to be war-caused under s 9 of the Act and, accordingly, the veteran’s death will be war-caused under s 8(1)(f) of the Act if he died from that condition.  The required connection is with the accepted condition and not Mr McNeill’s service.  In considering the disease “from which” Mr McNeill died, the causal criteria in s 8(1)(b) of the Act are not relevant and the Tribunal must be reasonably satisfied, in accordance with s 120(4) of the Act, of a more direct relationship: see Shaw and Repatriation Commission [2005] AATA 354 and to Repatriation Commission v Hayes (1982) 43 ALR 216.

Evidence

7.      Medical evidence in this matter comprised a report by thoracic physician, Dr Barry Hickey, clinical notes from Dr Trace and reports from Senior Medical Officer Compensation with the respondent, Dr Peter Grant.  Dr Trace and Dr Grant also gave oral evidence. 

8.      In his report, dated 18 June 2002, Dr Hickey advised that the veteran had lost about one third of his lung function with shortness of breath occurring after walking about 400 metres.  Dr Trace confirmed that the veteran died from prostate carcinoma with severe effects from the condition being noted from October 2004.  He said that tests conducted in February 2005 revealed that the condition had metastasized to his skeletal structure and to his brain.  His overall condition was such that he was placed in palliative care.  Dr Trace noted that the veteran had been found to be anaemic during a hospitalisation period from October to November 2004.  He said that this could result in increased shortness of breath such that it could aggravate emphysema.  He also said that there had been no treatment provided for the veteran’s lung condition in the months before his death and that this was not unusual in a patient who had been placed in palliative care.  He described a comorbidity in the causes of the veteran's death which included the presence of emphysema.  He was unable to say, “without the benefit of a crystal ball”, whether the presence of that condition had accelerated his death although he considered that, perhaps, he died 1 or 2 weeks earlier than he otherwise would have due to his prostatic cancer. 

9.      Dr Grant completed reports on 3 January 2007 and 27 April 2007.  He referred to Dr Hickey’s description of breathlessness after walking some 400 metres and said that this did not indicate that the condition constituted a threat to life.  He had read the veteran’s terminal illness notes and also the clinical notes of Dr Trace.  He said that the veteran's anaemia was at such a level that it, in itself, would result in breathlessness with anything other than minimum exertion and he noted that it was this condition which was treated at the time, by blood transfusion, rather than a lung condition.  He also noted that the veteran’s state was described as having much improved as a result of that treatment.  He also described an absence of any reference to treatment for a lung condition at the time of the veteran's admission to hospital.  He considered that the absence of any such treatment or reference meant that there was no active effect upon the veteran from his emphysema and no contribution to his death from that condition. 

10.     Dr Grant expressed the opinion that the metastatic impacts of prostate cancer on the veteran which were noted in February 2005 were such that he had a limited life expectancy which was in the order of 6 to 12 months.  He considered that there was a possibility that emphysema could hasten death but was of the opinion that, for that to be so in the veteran’s case, there needed to be evidence that it was an active condition requiring some treatment in the period leading up to his death.  In the absence of any such evidence, he considered that the veteran’s accepted disability did not contribute to death.

Submissions

11.     Mr Harding, for the applicant, submitted that, on the evidence of Dr Trace, there was contribution to the veteran’s death from chronic bronchitis and emphysema.  He referred to Dr Grant’s reliance on an absence of treatment for the condition in the final months of the veteran’s life.  However, he submitted that this could be explained by the overall state of the veteran which required him to be in palliative care and which made treatment for chronic bronchitis and emphysema at that stage unlikely, even though it was present.  He submitted that the absence of treatment did not mean there was an absence of the condition.  He also noted the reference by Dr Grant to the prospect of the veteran surviving for a period of 6 to 12 months from early February because of prostate cancer and its metastatic complication and contrasted that with the period before death of only 5 weeks.  He submitted that this supported the contention that chronic bronchitis and emphysema played a part in hastening the veteran’s death.

12.     Mr Smith submitted that the cause of the veteran’s death was prostate cancer and that the absence of references to chronic bronchitis and emphysema in the period leading to death removed any causal role by that condition to his death.  He accepted that the veteran had chronic bronchitis and emphysema but submitted that he died with the condition rather than from it.

Consideration

13.     I have considered the submissions of Mr Harding but, on the balance of probabilities, I am satisfied that there was no material contribution to the veteran’s death from his accepted disability of chronic bronchitis and emphysema.  Dr Hickey described breathlessness after walking some 400 metres and I accept Dr Grant’s evidence that this level of functioning does not constitute a threat to life.  Clearly, Dr Hickey’s report was prepared more than 2 years before the veteran died.  Dr Trace’s evidence was that the cause of death was the veteran’s prostate cancer and he was only minimally supportive of any contributory role to the veteran’s death played by the lung condition.  Dr Trace raised the possibility of the veteran’s anaemia aggravating his emphysema and explained the lack of any treatment for it as not being unusual because he was in palliative care.  However, on the balance of probabilities, I accept the evidence of Dr Grant.  To him, it was material that there was no treatment for the lung condition in the veteran’s final months.  I do not accept the contention that this was because he was in palliative care at the time.  Indeed, the veteran did receive treatment for his anaemia during that period.  Moreover, Dr Grant noted that the level of breathlessness that he demonstrated was improved by the blood transfusions given for anaemia in the absence of any treatment for a lung condition.  I am reasonably satisfied that, for the purposes of s 8(1)(b) of the Act, the veteran’s death did not arise out of and was not attributable to his war service.  I am also reasonably satisfied that, for the purposes of s 8(1)(f) of the Act, his death was not contributed to by his accepted disability.  

Decision

14.     The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr R G Kenny, Member  

Signed:         ………………………………….

Personal Assistant

Date of Hearing  18 September 2007
Date of Decision  23 November 2007
Counsel for the Applicant         Mr A Harding, of Counsel
Solicitors for the Applicant        Cockburn Legal & Consulting

For the Respondent                  Mr M Smith, departmental advocate