Walton and Repatriation Commission - [2000] AATA 117

DECISION AND REASONS FOR DECISION [2000] AATA 117

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/130

Veterans' Affairs DIVISION )

Re IVY LILLIAN WALTON
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Brigadier I R W Brumfield CBE DSO RL (Member) Dr J M Lawrence AM (Member)

Date18 February 2000
PlaceBrisbane

Decision The Tribunal decides that the decision under review is set aside and the applicant is entitled to payment of a pension in accordance with section 13 of the Veterans' Entitlements Act 1986 with effect from 19 March 1995.

Decision No 117/2000 (Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS : Statement of Principles – Reasonable hypothesis – Eligible service – Analgesic nephropathy

Veterans' Entitlements Act 1986 ss 8, 13, 119(1)(h), 120(1), 120(3), 120A, 196B, 196B(2), 196B(2)(d)(e), 196B(11)

Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1

REASONS FOR DECISION

18 February 2000 Mr K L Beddoe (Senior Member)
Brigadier I R W Brumfield CBE DSO RL (Member) Dr J M Lawrence AM (Member)

The applicant seeks review of a decision by the respondent to refuse payment of a widow's pension on the grounds that the veteran's death was not causally related to service. That decision was subsequently affirmed by the Veterans' Review Board.
Section 8 of the Veterans' Entitlements Act 1986 ("the Act") provides that for the purposes of the Act the death of a veteran shall be taken to have been war-caused if, inter alia:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; or
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 120(3) of the Act requires the Tribunal to consider the whole of the material before it and decide whether that material points to an hypothesis connecting the veteran's death with his eligible war service.
Section 120A of the Act has the effect of requiring such an hypothesis to be assessed by reference to an applicable Statement of Principles made in accordance with section 196B of the Act. Only such an hypothesis which comes within the terms of the relevant Statement of Principles will raise a reasonable hypothesis within the terms of section 120A of the Act for the purposes of section 120(3) of the Act. If the hypothesis does not come within the terms of the Statement of Principles then it will not be a reasonable hypothesis and there will not be sufficient ground for finding that the veteran's death was caused by eligible service.
This is a case where the Tribunal also needs to take into account difficulties which lie in the path of the applicant due to the effects of the passage of time in particular (section 119(1)(h)).
At the resumed hearing Mr Logan appeared for the applicant and Mr Dobbie appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and three medical witnesses.
We make the following findings of fact:
(a)The veteran was born on 27 January 1928 and died on 14 March 1978.
(b)Cause of death was certified as cardiac arrest due to septic shock in turn due to renal transplant on immunosuppressions.
(c)Service as a refrigeration mechanic in the Australian Army commenced 8 March 1946 and ceased 22 June 1948 being eligible service with operational service from 9 October 1946 to 4 December 1947. The veteran subsequently re-enlisted in the Army on 23 June 1948 and was discharged 29 May 1958. This service is not eligible service.
(d)The eligible service included working on ordnance disposal at the end of World War 2. The applicant says, and we accept, that the veteran experienced traumatic events during his service including deaths from exploded bombs and discovery of corpses in the field.
(e)The veteran was diagnosed with malaria during service including being hospitalised in Rabaul.
(f)He was also diagnosed with other medical conditions during eligible service which have no apparent relevance to this matter except that headaches were noted in connection with malaria.
(g)Based on the evidence of the applicant and the veteran's sister we accept that the veteran had a history of consuming Bex powders ("APC") at what must be accepted as excessive levels of consumption – the reason given for such consumption being "noises in the head" and headaches.
(h)It was also said, but not established to our satisfaction as having occurred during eligible service, that the veteran suffered diesel fuel poisoning. It is likely that the poisoning occurred during Army service that was not eligible service (Exhibit A and Exhibit 3).
(i)After leaving the Army in 1958 the veteran worked as a truck driver and then as a plant operator.
(j)The applicant says and we accept that the veteran had what we will describe as mood swings whereby he could be calm and then suddenly change to being volatile, bad tempered and/or anxious.
(k)The veteran was reluctant to talk about his war experiences and did not maintain contact with other ex-service personnel from the time of his eligible service notwithstanding his resumed service in the Army.
(l)Evidence of the veteran's sister (T5) and the applicant satisfies us that the veteran suffered a personality change because of his operational service resulting in anxiety, poor sleeping patterns and tension headaches resulting in the analgesic abuse.

THE MEDICAL EVIDENCE

When the veteran re-enlisted in the Army in 1952 the examining medical officers recorded kidney disease "as a young child" (Exhibit 4).
Report of a Final Medical Board dated 16 April 1958 shows a history of weakness in the muscle of the right arm from 1947. The applicant's reference to problems with the left arm probably refers to the same condition but is confused as to the relevant arm. The report also records "injury to back 1956 Brisbane" and "Diesel poisoning 1956-1957 Brisbane". The Medical Board reported that the veteran had a continuing problem with his right arm but "no trouble with back".
Exhibit 2 is a bundle of copy medical reports during the veteran's Army service. These records show a history of headaches first recorded on 4 October 1948 as "post traumatic headaches" referenced to a head injury at 7 years with concussion.
Document T5 includes a report by Dr Row a Nephrologist dated 6 November 1989. Dr Row was personally involved in the treatment of the veteran while he was in the renal unit at Princess Alexandra Hospital. In preparing the report Dr Row had access to the hospital records. He said that from the information available it was his opinion that there was sufficient information to support the hypothesis that the veteran consumed sufficient quantities of compound analgesics over the years to cause kidney damage. Dr Row did not consider the veteran's childhood nephritis to be a significant factor.
Dr Row diagnosed analgesic nephropathy but it was unlikely to be the main lesion.
Dr Row confirmed his diagnosis in a further report dated 26 August 1998 (Exhibit D). He specifically excluded the childhood nephritis and malaria while on service as likely causes for the kidney failure.
Dr Row was of the opinion that the probable sequence of events and "the most reasonable hypothesis" is that the veteran became dependent on compound analgesics after his war service and probably for "residual stresses arising from his war service". Dr Row reported that the veteran said he took analgesics because of headaches per se but Dr Row discounts that explanation preferring the family explanation. He diagnosed severe and progressive kidney damage from papillary necrosis and secondary hypertension which resulted in end-stage kidney failure.
In his oral evidence Dr Row confirmed that the clinical history was consistent with analgesic abuse and said that the veteran would have died from analgesic nephropathy except for the intervention of the kidney transplant. He said that self-medication with APC would be habit forming. As to diesel poisoning he said that the effect of such poisoning is immediate symptoms. He said such poisoning can have an adverse effect on kidneys.
As we have already found it is likely the diesel poisoning does not relate to the eligible service but we are unable to determine the time of the poisoning.
Document T5 includes reasons for decision of a Veterans' Review Board issued on 29 December 1988. While we are not concerned with the Board's decision or reasons for decision, the Board does set out extracts from the report of an autopsy carried out on the day following the veteran's death. The medical history included in the autopsy report is given as follows:
"Past Medical History
1965right upper lobe pneumonia.
1970exploration and transposition of right ulnar nerve.
1974chronic renal failure secondary to glomerulonephritis; malignant hypertension; bilateral nephrectomies performed in November 1974 with subsequent commencement of peritoneal dialysis; persistent hypertension; haemodialysis commenced January 1975.
April 1975 renal allograft.
1977chest infection; asthma.
Splenectomy performed ? date.
The patient has also been a heavy smoker and has worked in a coal mine.
The patient presented on 12.3.78 with left sided chest pain and pain in his left knee which was swollen. At this time he gave a history of having had a Herpes Zoster like rash in his left axilla for approximately 2 weeks prior to admission. At the time of admission he was on Prednisone and Imuran as well as antihypertensives. At the time of admission he was found to have a fever, dry cough, vomiting, malaise, wheezing and tender swollen left knee. Subsequent investigations revealed a severe anaemia at the time of admission of 6gms% and also impaired renal function with a blood urea of 53.7mmol/1 (normal 2.5 – 7.0), also creatinine 0.72mmol/1 (normal 0.06 – 0.11). Over the course of the next 24 hours, the patient developed pain in both knees and ankles and also a skin rash. Subsequently his condition deteriorated and on 14.3.78 he apparently suddenly became hypotensive, unconscious and cyanosed. Also his anaemia had become worse, his Hb dropping to 4.6gms%. On the morning of 14.3.78, he was transferred to I.C.U. at which time he was considered to be in severe septic shock with peripheral circulatory failure, hypotensive and with a proven gram negative polyarthritis. His skin lesions had apparently worsened and were now described as being multiple haemorrhagic/oedematous skin lesions. Apparently the patient was also septacaemic having grown Pseudomonas on blood culture.
Dermatological consultation on 14.3.78 considered the most likely diagnosis for the skin lesions to be disseminated Herpes Zoster. His condition continued to deteriorate with progressive cyanosis, respiratory distress and bradycardia and at 9.10pm on 14.3.78 the patient became asystolic with attempted resuscitation being unsuccessful. The cause of death was thought to be due to cardiac arrest due to septic shock."
The findings of the autopsy are recorded as follows:
"This was a 50 year old renal transplant patient with multiple problems who had a rapidly progressive terminal illness. The cause of death is multifactorial with a proven gram negative septicaemia and extensive disseminated intravascular coagulopathy. No doubt the immunosuppressed state had contributed to the widespread infection by pseudomonas."
Document T5 also includes a report by Dr Freed, Psychiatrist dated 6 September 1995. The basis for that report is the histories supplied by the applicant and the veteran's sister as to the veteran's war-time experiences. Dr Freed concluded as a reasonable hypothesis that war-caused stress caused Post Traumatic Stress Disorder which caused headaches which led to chronic analgesic use and kidney disease.
Dr Freed has made further reports dated 26 February 1998 (Exhibit B) and 25 June 1999 (Exhibit C). In his report (Exhibit B) Dr Freed sets out in detail his basis for the diagnosis anxiety caused by PTSD with the history of headaches due to the anxiety initially and anxiety and analgesic abuse subsequently.
In his oral evidence Dr Freed specifically identified two stressors during eligible service. One was the veteran's witnessing his friend being killed by an exploding bomb. The second stressor was the discovery of bodies in a cave in New Guinea. He also linked the anxiety caused by PTSD with the abuse of analgesics because the headaches were a symptom of anxiety.
The evidence of Dr Freed is in direct contrast with the evidence of Dr Mulholland, a psychiatrist called to give evidence for the respondent. Dr Mulholland made two written reports dated 10 December 1997 (Exhibit 5) and 10 September 1998 (Exhibit 6). In the first report Dr Mulholland discounted the applicant's history leading him to disagree with Dr Freed. In particular Dr Mulholland concluded that the late veteran did not have a psychiatric condition and in particular did not have PTSD. In his oral evidence Dr Mulholland did concede that the incidents as outlined in the applicant's statement (T5) could result in PTSD.
CONSIDERATION
We are confronted with two distinct but similar medical hypothesis as to the cause of the veteran's death. Dr Row says that the probable sequence of events and the most reasonable hypothesis is that the veteran became dependent on compound analgesics after his war service and probably because of residual stresses arising from his war service. As a consequence he developed severe and progressive kidney damage from papillary necrosis and secondary hypertension which resulted in end-stage kidney failure. We would add to the hypothesis that the kidney failure led to the renal transplant which in turn lead to the cause of death as found on the autopsy.
Dr Freed's hypothesis depends upon the veteran having experienced traumatic experiences during his eligible service and as a consequence suffering headaches caused by anxiety arising from post traumatic stress with the headaches becoming multifactorial in their cause because of the anxiety and the self treatment with APC leading to abuse of the APC. The hypothesis then picks up the hypothesis as stated by Dr Row linking the APC abuse with kidney failure, the renal transplant and the cause of death as found by the autopsy.
As we understand the law we must consider whether the facts raised by the material before the Tribunal give rise to a reasonable hypothesis connecting the veteran's death with his eligible service. The hypothesis will not be reasonable if it is obviously fanciful or untenable so that the claim must fail. The hypothesis will also not be reasonable if it fails the test of section 120A of the Act.
The steps to be followed were set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. There the Court discussed the authorities and following what the High Court said in Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1, and Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1, but taking into account the enactment of section 120A and related provisions, the Full Court set out the course which must be taken in cases where section 120A (on the facts of this case) operates to require that the reasonableness of the hypothesis is to be assessed by reference to a Statement of Principles made under section 196B of the Act.
The Full Court said at 49 ALD 206
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11)……
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
In this case there are relevant statements of principle in force so that this is not a case where there is no "SoP".
A relevant Statement of Principles is Instrument 56 of 1994 as amended by Instrument 277 of 1995 concerning Analgesic Nephropathy. One of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from analgesic nephropathy with the circumstances of operational service is:
(a)chronic analgesic abuse before the clinical onset of analgesic nephropathy.
We are satisfied that factor has been satisfied if we are satisfied that the veteran's death was caused by analgesic nephropathy. In one sense it was not, because as Dr Row explained, although the veteran's natural death was at the point of "renal death" which occurred at the time of beginning dialysis in 1974, his further survival and subsequent death in 1978 was directly related to renal replacement treatment of dialysis and the kidney transplant in 1975.
We are satisfied that the treatment for Analgesic Nephropathy was successful in the short-term but unsuccessful in the ultimate causing death. The fact of treatment, as the facts show did not alter the fact of renal impairment within the terms of the definition of "analgesic nephropathy" in the Statement of Principles.
The question then is whether, on the raised facts, the analgesic nephropathy caused by chronic analgesic abuse can be said to be related to the operational service rendered by the deceased veteran.
Dr Freed's hypothesis shows the basis for the relationship. We are satisfied that Dr Freed's hypothesis comes within the template of the Statement of Principles.
In coming to that conclusion we have not overlooked the diagnosis of PTSD in the hypothesis. We have come to the conclusion that the diagnosis of PTSD is otiose and the hypothesis does not depend on that diagnosis.

It follows that the hypothesis is a reasonable hypothesis connecting the analgesic nephropathy with the late veteran's operational service and we are satisfied that the condition became the primary cause of the veteran's death.
We are satisfied that the material before the Tribunal is consistent with the hypothesis and there are grounds in the material for making a determination in favour of the applicant.
The decision under review will be set aside and the Tribunal decide that the veteran's death was war-caused and the applicant is entitled to payment of a pension under section 13 of the Act with effect from 19 March 1995.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Brigadier I R W Brumfield CBE DSO RL (Member) and Dr J M Lawrence AM (Member).
Signed:
  T G Lowther
Associate
Dates of Hearing  8 April 1999 and 14 July 1999
Date of Decision  18 February 2000
Counsel for the Applicant        Mr Logan
Solicitor for Applicant               Gilshenan & Luton
Solicitor for the Respondent    Mr Dobbie