Tinkler and Repatriation Commission - [2001] AATA 253

DECISION AND REASONS FOR DECISION [2001] AATA 253

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1996/1145

VETERANS' APPEALS DIVISION       )
           Re      Gladys Irena TINKLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 March 2001
PlaceSydney

Decision      The Tribunal affirms the decision of a delegate of the Repatriation Commission dated 19 April 1995 that determined that the death of Usher Gordon Tinkler was not war-caused.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS AFFAIRS – war widow's pension – death of veteran from myocardial infarction and ischaemic heart disease - whether hypertension contributed to death from ischaemic heart disease – whether reasonable hypothesis that war-caused stress contributed to development of hypertension – whether hypothesis raised is consistent with factors in Statement of Principles - whether earlier or later Statements of Principles are more beneficial

Veterans' Entitlements Act ss 120(1), 120(3), 120A

Statement of Principles - Instruments No 85 of 1995, No 83 of 1995, No 38 of 1999, No 25 of 1999

Arnott v Repatriation Commission [2001] FCA 262
Gorton v Repatriation Commission [2001] FCA 286
Ogston v Repatriation Commission (1999) 86 FCR 578
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") made on 19 April 1995 that determined that the death of Usher Gordon Tinkler ("the Veteran") was not war-caused and that his widow, Gladys Irena Tinkler ("the Applicant"), was not entitled to war widow's pension. That decision was reviewed by the Veterans' Review Board on 22 August 1996 and affirmed. An application for review was lodged with this Tribunal on 24 September 1996.
At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A report from Dr E Schiller, cardiologist, dated 23 September 1997, was tendered on behalf of the Applicant. The Applicant and her son, Ian Geoffrey Tinkler, gave oral evidence at the hearing.
The Veteran was born on 2 June 1919. He served in the Australian Army from 4 March 1941 until 19 October 1944, including service in Darwin and New Guinea, and he is therefore determined to have had operational service.
The Veteran died on 11 October 1994 from acute myocardial infarction and ischaemic heart disease. It is the Applicant's case that the Veteran suffered from an anxiety state arising from his war service and that this caused the later development of hypertension that contributed to his ischaemic heart disease and ultimately to his death.
legislation and applicable statements of principles
As the Veteran had operational service, the standard of proof to be applied in determining this matter is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"), which requires the Tribunal to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his service.
As the Applicant lodged her claim after 1 June 1994, pursuant to s120A of the Act, the Tribunal is required to apply the relevant Statements of Principles in determining whether the hypothesis is reasonable. At the time the primary decision was made on 19 April 1995 Statements of Principles had been gazetted in respect of Ischaemic Heart Disease (Instrument No.85 of 1995) and Hypertension (Instrument No.83 of 1995). Those Statements of Principles have since been revoked and have now been replaced by Instrument No.38 of 1999 for Ischaemic Heart Disease and Instrument No.25 of 1999 for Hypertension.
The Tribunal notes that the hypothesis on which the Applicant relies, that is, that war-caused stress contributed to the development of the Veteran's hypertension, is not supported by either the 1995 or the 1999 Statements of Principles. Therefore in practical terms there is no real issue as to which Statement of Principles is more favourable to the Applicant. The Tribunal notes the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 that in effect allows an applicant to rely on his/her accrued rights to have the matter determined by applying the Statements of Principles applicable at the time of the primary decision.
Reference has been made to the decision in Keeley (supra) by the Full Federal Court in Arnott v Repatriation Commission [2001] FCA 262 in the following terms (at paragraphs 15-17) –
The Full Court concluded that, as rights accrue under an SoP, where the SoP applicable at the date of the Commission's decision is more beneficial than the SoP that replaces it, the earlier SoP is to apply unless a contrary intention is clearly disclosed. Lee and Cooper JJ at [46] said that in respect of beneficial legislation, such as the VE Act, it may be concluded that Parliament
"intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked."
See also at [80-81] per Kiefel J.
It seems to be implicit, if not explicit, in the approach of the Full Court in Keeley that a contrary intention might be found if the terms of a later SoP are more beneficial to a claimant than the terms of the SoP which it replaced. Of course, the contrary intention must be discerned from all of the terms of the later SoP and not just particular aspects of it.

Ultimately the Court held that the same outcome would be reached whether the earlier or the later statement applied.

Subsequently, the Federal Court took the issue further in Gorton v Repatriation Commission [2001] FCA 286, where Stone J stated (at paragraphs 23-24):
In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles: ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. ….
The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83.
The only other relevant decision for the Tribunal to take into account in this matter is that of the Full Federal Court in Ogston v Repatriation Commission (1999) 86 FCR 578. That matter is on all fours with the matter now before the Tribunal insofar as there was no relevant Statement of Principles in place at the time the claim was first lodged, but by the time the primary decision was made a Statement of Principles had been gazetted. It was held by the Full Federal Court in Ogston that the appellant did not have a right to have the Tribunal determine her claim according to the law as it existed when her claim was first made, since the intention of the legislature was that s120A of the Act applied to all claims that related to the operational service rendered by a veteran made on or after 1 June 1994.
The Tribunal notes that the Applicant's matter has been delayed in the Tribunal for some years to await the decision of the Full Court in Ogston and subsequently Gartrell v Repatriation Commission [2000] FCA 542 where Madgwick J followed the Full Court decision in Ogston. After both these decisions were handed down the Applicant lost her legal representation. Nevertheless she chose to pursue review by this Tribunal, as is her right.
In applying the case law as outlined, as the Tribunal is required to do, the decision of Stone J in Gorton (supra) requires the Tribunal in this matter to determine whether the 1995 or the 1999 Statements of Principles are more beneficial to the Applicant. The Tribunal has taken account of the differences in the Statements of Principles and considers that there is no real difference in relation to the Applicant's case. For abundant caution, in case the case law on this issue has not been finally settled, the Tribunal will apply both the 1995 and the 1999 Statements of Principles.
The Applicant and her son gave their evidence in an open and forthright manner and the Tribunal accepts them as witnesses of truth. Dr Schiller, cardiologist, provided a report (exhibit A) having considered the documents that are now before the Tribunal, but his report did not take into account the Statements of Principles. Dr Schiller noted the evidence of Dr Allen who was the Veteran's local medical officer from 1972 to 1983 (T19). Dr Allen noted that the Veteran was a moderate social drinker of alcohol. He also noted that the Veteran's blood pressure was never greatly elevated, but by 19 June 1978 he had developed Grade II hypertensive retinal vascular changes. He suffered from chest pains on 26 November 1981 and was found to have mild left ventricular enlargement and dysfunction suggestive of ischaemic heart disease. In March 1982 he suffered from a cerebrovascular incident. Dr Allen also noted that the Veteran suffered from labile hypertension, chronic anxiety state, congenital polycystic kidneys and rheumatoid arthritis.
Hypertension
The history noted by Dr Schiller about the Veteran's nervous tension and anxiety following his service was confirmed in the oral evidence of the Applicant and her son. The Veteran's service in Darwin for 19 months and his subsequent service in New Guinea were apparently stressful. In particular, he was distressed throughout his life by an incident that occurred in New Guinea when he shot at a person in the dark whom he thought to be a Japanese soldier but instead was a native girl whom he killed. Throughout the Veteran's post-service life he has had flashbacks about that incident. He became distressed when viewing films depicting war. He could not cope being alone, and after winning a Soldier Settlement block of land which he developed he chose to take employment in the local town because he needed to be with people. He found support in being with other ex-servicemen in the RSL and Legacy clubs.
On the evidence the Tribunal finds that the Veteran experienced significant stress while on service and as a result of his service he continued to suffer from a stress reaction throughout his life.
This finding would be of assistance to the Applicant if this was a claim where she was able to rely on the hypothesis raised by Dr Schiller in his report, connecting the Veteran's stress reaction arising from his service with the later development of hypertension. However pursuant to s120A of the Act, this is a claim where the Tribunal must use the Statements of Principles in determining whether an hypothesis is reasonable. The hypothesis raised by the Applicant – namely, that war-caused stress contributed to the development of the Veteran's hypertension - can only be found to be reasonable if it is consistent with one of the factors set out in the Statement of Principles for Hypertension. The Tribunal notes that neither the 1995 nor the 1999 Statement of Principles for Hypertension has any factor in it that relates to stress being a causative factor. Therefore, despite Dr Schiller's support for the hypothesis raised, the Tribunal is unable to find when applying either the 1995 or the 1999 Statement of Principles that the hypothesis raised on the evidence of Dr Schiller is reasonable.
At the hearing, the Applicant's representative was given an opportunity to identify any of the factors contained in the Statement of Principles that he considered might assist the Applicant. In respect of the 1995 Hypertension Statement of Principles, he raised the following factors which he considered supported the Applicant's case, viz. –
(h)       suffering from diabetic nephrosclerosis before the accurate determination of hypertension;
(j)        suffering from obstructive nephropathy before the accurate determination of hypertension;
(m)      suffering from a collagen vascular disease before the accurate determination of hypertension;
The Tribunal finds that although the Veteran suffered from diabetes mellitus there is no evidence before the Tribunal that connects that condition with his service. It was submitted for the Applicant that it arose out of his stress condition. There is no medical evidence before the Tribunal to support that hypothesis, and the Tribunal notes that stress is not listed as a factor in the Statement of Principles for Diabetes Mellitus (Instrument No. 174 of 1995). Moreover, not only is there no evidence that the Veteran's diabetes was related to his service, but there is no evidence that he suffered from diabetic nephrosclerosis.
Similarly, the Tribunal finds that there is no evidence that the Veteran suffered from obstructive nephropathy before the development of his hypertension. Additionally, there is no evidence that he suffered from a collagen vascular disease. There is no evidence that the Veteran's stroke and blindness was related to a collagen vascular disease, as inferred on behalf of the Applicant.
Hence the Tribunal finds that the hypothesis does not meet the factors raised in the Statement of Principles on behalf of the Applicant, nor does it meet any other factors in the Hypertension Instrument.
Ischaemic Heart Disease
In considering the Statement of Principles for Ischaemic Heart Disease (Instrument No.85 of 1995), it was submitted for the Applicant that the following factors were relevant in this case –
(a)       the presence of hypertension before the clinical onset of ischaemic heart disease;
(b)       the presence of diabetes mellitus before the clinical onset of ischaemic heart disease;
(g)       an inability to undertake vigorous or moderate leisure time activity for a continuous five year period, after service, immediately before the clinical onset of ischaemic heart disease.
The Tribunal has already found that the Applicant is unable to succeed in meeting the Statement of Principles for Hypertension and it follows, therefore, that the Applicant must fail in respect of factor (a) of the Ischaemic Heart Disease Statement of Principles.
In respect of factor (b), as the Veteran's diabetes mellitus cannot be demonstrated to be war-caused, in turn the Applicant must fail in respect of this factor.
In respect of factor (g), it was submitted that the Veteran had "no leisure time due to hypertension". Apart from the fact that the basis of this assertion was not substantiated, the Applicant fails in relation to this factor because it relies on the association between the Veteran's hypertension and his war service, which the Tribunal is unable to accept.
Although the submissions for the Applicant were made in respect of the 1995 Statements of Principles, the Tribunal notes that applying the 1999 Statements of Principles in respect of Hypertension (Instrument No.25 of 1999) would not assist the Applicant. While factors (h) and (j) are not reproduced in the 1999 Statement of Principles, the factors relating to renal disease in the 1999 Instrument do not assist the Applicant. Factor (j) in the 1999 Instrument, relating to collagen vascular disease, is more restrictive than in the 1995 Instrument.
The Tribunal has demonstrated that the Applicant is unable to meet either the 1995 or the 1999 Statements of Principles for either Hypertension or Ischaemic Heart Disease. The Tribunal finds that the provisions of s120(3) and s120A of the Act are not satisfied, and therefore no reasonable hypothesis has been raised. By applying both the 1995 and the 1999 Statements of Principles the Tribunal has left open the issue of which should be applied as neither are of assistance. In these circumstances it is not necessary to proceed to the considerations relating to s120(1) of the Act.
The Tribunal finds that the Veteran's death was not war-caused. Therefore the decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  23 March 2001
Date of Decision  29 March 2001
Representative for the Applicant   Wal Fisher
Solicitor for the Respondent         Philippa Hook, Department of Veterans' Affairs