Williams and Repatriation Commission
[2000] AATA 1111
•15 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1919
VETERANS' APPEALS DIVISION )
Re JOAN MARY WILLIAMS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date15 December 2000
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] A R Horton
Member
CATCHWORDS
VETERANS' AFFAIRS – widow's pension – whether death of applicant's husband was war caused – operational service – Statement of Principles for Ischaemic Heart Disease - whether smoking habit war-caused – whether smoking habit related to cause of death – standard of proof
Veterans' Entitlements Act 1986 - ss 6,8,14,120(1), 120(3) 120A,
Statements of Principles No 80 of 1988, No 38 of 1999
Repatriation Commission v Keeley (2000) FCA 532
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gosewinkel [1999] FCA 1273
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1996)
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
REASONS FOR DECISION
Rear Admiral AR Horton AO, Member
This is an application for review of a decision dated 6 April 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review by the Veterans' Review Board under section 139 of the Veterans' Entitlements Act 1986 ("the Act") on 11 October 1999, that the death of Colin Williams was not war caused, and hence Joan Mary Williams ("the Applicant") is not eligible for a war widow's pension pursuant to section 14 of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 20 December 1999.
At the hearing before the Tribunal on 2 November 2000, the Applicant was represented by Mr M Vincent of Counsel. Mr P Godwin appeared as Advocate for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:
Statutory declaration by Joan Williams dated 22 November 1999. Exhibit A1
Statutory declaration by William Bennett dated 24 November 1999. Exhibit A2
Report by Dr M G Miller, consultant physician, dated 31 July 2000. Exhibit A3
Report by Dr D Barton dated 14 March 2000. Exhibit A4
An article titled "The Cardiovascular Pathology of Smoking" published in the American Heart Journal, January 1988. Exhibit A5
Letter from Department of Veterans' Affairs to Dr Barton, Shoal Bay Medical Centre, dated 1 August 2000 and response dated 3 August 2000. Exhibit R1
Report by Associate Professor D Richards dated 1 November 2000. Exhibit R2
Supplementary report by Associate Professor D Richards dated 1 November 2000. Exhibit R3
Medical records of Colin Williams from the Shoal Bay Medical Centre. Exhibit R4
The Applicant and Dr Miller gave oral evidence.
ISSUES BEFORE THE TRIBUNAL
The veteran, Colin Williams, died on 14 February 1999, the direct cause being identified as coronary atherosclerosis as noted in the Post Mortem Examination Certificate dated 16 February 1999. The Applicant claims war widow's pension pursuant to section 14 of the Act. The circumstances in which the death of a veteran shall be taken to have been war caused are at section 8 of the Act.
Mr Williams served in the Royal Australian Air Force ("RAAF") from 12 January 1943 until 6 February 1946 (T3), this being eligible war service as defined in the Act. As he served at Morotai, the whole of his service constitutes operational service pursuant to section 6 of the Act.
The relevant standard of proof pursuant to section 120 of the Act became a matter of dispute in the course of the hearing in respect of the clinical onset of the condition that directly lead to the death of the veteran, that is, coronary atherosclerosis, this being relevant in the context of the applicable Statement of Principles. Section 120 provides, relevantly:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
that the injury was a war caused injury or a defence-caused injury;
that the disease was a war-caused disease or a defence- caused disease; or
that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
…
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
..."
Section 120A, which applies to sections 120(1) and (3), refers to the reasonableness of an hypothesis to be assessed by reference to Statement of Principles. It relevantly states:
"(1)This section applies to any of the following claims made on or after 1 June 1994:
a claim under Part II that relates to the operational service rendered by a veteran:
…
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
a Statement of Principles determined under subsection 196B(2) or (11); or
A determination by the Commission under subsection 180A(2);
that upholds the hypothesis."
The relevant Statement of Principles ("SoP") at the time of the primary decision was Instrument No.80 of 1998, concerning ischaemic heart disease. This instrument was subsequently revoked on 27 April 1999, being replaced by Instrument No. 38 of 1999. At the commencement of proceedings the parties agreed that Instrument No. 80 of 1998 was the appropriate SoP in this matter.
FACTS AND EVIDENCEThe Applicant seeks to relate the smoking history of the veteran, conceded by the Respondent as war caused, to the clinical onset of ischaemic heart disease. There is no dispute between the parties as to the cause of death, the issue being whether the veteran continued smoking to the point where the conditions of SoP No.80 of 1998 might be met. Whilst Dr Barton at Exhibit A4 makes reference to the veteran having diabetes mellitis, a relevant factor in SoP No. 80 of 1998, this condition had not hitherto been addressed, and Counsel for the Applicant confirmed that it was not being pursued.
SoP No. 80 of 1998 states, relevantly:
"4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
(e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
where smoking has ceased prior to the clinical onset of ischaemic heart disease,
smoking one or more but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within five years of cessation; or
smoking five or more but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or
…"
The Applicant gave evidence that she met the veteran in 1956 and that they were married in March 1957. At that time Mr Williams was smoking, in her estimation, about two packs a day of ready made cigarettes. She did not believe this habit changed until many years later. In the 1960s Mr Williams was diagnosed with asthma, a condition which led to a breathing problem, and ultimately the acceptance by the Respondent in 1997 of chronic airways limitation with asthma. The Applicant stated that her husband was advised to give up smoking for medical reasons and decided to break the habit in the mid 1970s. In her view, he compensated by drinking.
In a Smoking and Alcohol questionnaire, the veteran stated that he stopped smoking permanently (question 5) "approximately mid 1970" (T4), and the Respondent accepted the veteran's evidence that he had indeed stopped smoking at that time. The Applicant submitted in amplification of her statement at T11 that the veteran took this decision, not in mid 1970, but in the middle of the decade, that is about 1975/1976, and that that interpretation was what the veteran believed he was saying when completing the questionnaire. In oral evidence, the Applicant stated that thereafter she never saw her husband smoke, and until recently believed that he had stopped; she was aware that her husband's clothing often smelt of tobacco smoke, but thought this not unusual when he was drinking in the club environment. She now believes, as she stated in Exhibit A1, that he continued to smoke when not in her presence, at the returned Services Club ("RSL") when in the company of his mates, and at times when she was absent from the home. She believes that he continued to smoke in those circumstances for the remainder of his life. In a statutory declaration (Exhibit A2), Mr William Bennett states that the veteran "continued smoking in social situations, and he was still smoking the last time I was in his company which was Christmas 1998."
The Applicant gave evidence that during the 1970s there were difficulties in the marriage in respect of the Applicant's work in the hospitality industry, but that eventually these settled down and the couple moved to Nelson Bay in 1990. Mrs Williams stated that the veteran's airways limitation/asthma was "very bad" at that time, that he reduced his activities because of his health, his age and living in the country. She further stated that her husband had good and bad days. Whilst he could walk into Nelson Bay, a distance of about one and a half kilometres, he suffered tightness of the chest and shortness of breath, which at the time she attributed to his chronic airways limitation and asthma. She observed that her husband was careful with his diet because of his diabetes, and reduced his alcohol intake. In cross examination, the Applicant stated that whilst she usually had meals with her husband, she did not normally accompany him to the local RSL, which he would visit on about three or four occasions each week.
Medical evidence in respect of the veteran is limited. Medical records provided by the Shoal Bay Medical Centre (Exhibit R4) indicate that Dr Pidcock saw the veteran in 1993 in respect of diabetes; Dr Barton states that the veteran "only started attending our practice in 1996" (Exhibit R1). Dr Romero of the Shoal Bay Medical Centre noted exertional dyspnoea on 9 December 1997 when completing a Medical Impairment Assessment (T7). Dr Barton stated that "up until this time [the time of death of the veteran] he had no symptom of ischaemic heart disease" (T13).
Dr M G Miller, consultant physician, gave evidence for the Applicant. He considered that on the balance of probabilities, atherosclerosis would have been present in the veteran for many years. In his report at Exhibit A3, he states:
"…
I took a careful history of Mr William's symptoms from Mrs Williams. He suffered from chronic airways limitation and asthma and suffered from wheeze and attacks of shortness of breath at rest and exertion, but Mrs Williams told me that he also suffered from chest tightness and fatigue on exertion, but not at rest, for at least the previous ten years.
…"
Dr Miller concluded:
"…
It is not usual (although it is possible as a result of acute arrhythmia), for ischaemic heart disease to first present as sudden death without any premonitory symptoms whatsoever. In my experience such patients often have symptoms of angina that have not been recognised, or if recognised, the symptoms are attributed to some other cause, such as "indigestion"; in this case Mr and Mrs Williams attributed the symptoms to his chronic airways limitation and asthma.
In my opinion, it is a reasonable hypothesis to state that Mr Williams did suffer from angina since 1990 and that his ischaemic heart disease was clinically apparent, although undiagnosed, before his sudden death in February 1999.
…"
In oral evidence, Dr Miller drew on a report by Dr H C McGill titled "the Cardiovascular Pathology of Smoking", published in the American Heart Journal in January 1988, which supported the development of atherosclerosis as occurring many years before coronary disease becomes clinically apparent. In the case of the veteran, Dr Miller considered the pathological onset of the disease to have occurred "a long time back", that the onset could have been detected with appropriate medical tests and that the physical indications could have been masked by the circumstances of the chronic airways limitation, or by the veteran simply not making his chest pains known to Dr Romero or Dr Barton. In cross examination, whilst Dr Miller agreed that chest pains do not necessarily indicate the presence of heart disease, he saw a deterioration in the veteran's condition as reflected in the reduction in effort tolerance (MET) from 1997 to 1998, as recorded by Dr Romero.
Dr Miller considered the reports by Associate Professor Richards, cardiologist, Exhibits R2 and R3 for the Respondent, to be generally in agreement with his own views. Professor Richards, like Dr Miller, based his reports on the section 37 documents and supporting material, and discussions with the Applicant. In his report of 1 November 2000 (R2), he states "it is my opinion that dyspnoea for ten years prior to death may have been at least partly due to myocardial ischaemia."In support of that conclusion, he also considered that differential diagnosis to explain dyspnoea during the decade prior to death should have included ischaemic heart disease. He elaborated on this conclusion in his follow up report to the Respondent as follows:
"…
It is my opinion that dyspnoea for ten years prior to his death was partly due to ischaemic heart disease. It is my opinion that had I been asked to assess this man 10 years prior to his death, I would have included ischaemic heart disease among the differential diagnoses to explain dyspnoea. However, from the evidence you [the Respondent] have provided, it is my opinion that one would not have concluded on the balance of probabilities that Mr Williams had angina 10 years prior to his death. Nevertheless, it is my opinion that a reasonable hypothesis exists that Mr Williams had myocardial ischaemia (angina pectoris) accounting for some of his dyspnoea during the decade before his death.
Thus Mr Williams satisfies paragraph 2(b) of Statement of Principles No. 80 of 1998, at the time of his death.
…" (Exhibit R3)
ANALYSIS OF EVIDENCE AND FINDINGS
There are four issues in this matter:
the date when the veteran ceased smoking, or if that did not occur, the extent to which he continued to smoke;
(b) the onset of ischaemic heart disease, a disease which is accepted by both parties as the cause of death;
(c) whether the veteran meets the criteria in SoP No. 80 of 1998 in regard to the connection of IHD with relevant service, based on the findings at subparagraphs (a) and (b) above; and
(d) the standard of proof to be applied.
Counsel for the Applicant submitted that there could be no dispute that on the evidence, the veteran had smoked at least 20 pack years of cigarettes, at least until 1970, and most likely until about 1975/1976 based on the unchallenged evidence of the Applicant, supported by the understanding of Dr Barton, his general practitioner. As to whether the veteran smoked thereafter, the only evidence available to the Tribunal is that of the Applicant herself who believed, perhaps in hindsight and from third parties, that he continued to smoke in social circumstances. There is also the unchallenged evidence at Exhibit A2 from Mr Bennett that the veteran smoked at least until December 1998. There is no evidence as to how much the veteran smoked after the reduction in his habit in the 1970s, which is an element under SoP Factor 5(e), that is "smoking at least five cigarettes per day...for a period of at least one year immediately before the clinical onset of ischaemic heart disease", as favoured by the Applicant. The Tribunal concludes that on the evidence, the veteran changed his smoking habit in about 1975/76 from one to two packs per day to at most a minimal amount which has not been defined.
Factor 5(f)(iii) of the SoP is the only viable alternative available to the Applicant. Where smoking has ceased, the veteran must have "smoked at least 20 pack years of cigarettes…and clinical onset of ischaemic heart disease has occurred within 20 years of cessation'. Thus, for this criteria to be considered, the clinical onset of ischaemic heart disease must have occurred no later than about 1995/96.
The question of the relevant standard of proof in respect of clinical onset of ischaemic heart disease was addressed at some length by both parties in final submissions. Counsel for the Applicant referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17 at 20, wherein their Honours stated:
"…
We think it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a casual connection between disease and service."
At 22 of this decision their Honours went on to say in respect of suggested anomalies that might arise in the consideration of standards of proof:
"…
In our view there are two answers to those contentions. First, the language of 120(1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It make very good sense, in our view, to apply, as s120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorating provisions of s 120 (5) and (6) in relation to difficulties in establishing the facts.
…"
In the view of Counsel for the Applicant, the issue as to whether the veteran had ischaemic heart disease was settled in the affirmative by the post mortem report. The Tribunal is of the view that nothing hangs on this issue, as both parties accept the diagnosis. Counsel also referred to Repatriation Commission vGosewinckel [1999] FCA 1273 as following Cooke (supra), but contributing nothing further to the issue of relevant standard of proof.
In Gosewinckel (supra), Weinberg J summarised the decision in Cooke (supra) in the following manner at 36 and 37:
"The Full Court concluded that the history of the legislation indicated that the reasonable hypothesis standard had been introduced in 1986 when the VE Act was enacted solely for the purpose of determining whether an injury, disease or death was war-caused. All other matters, including questions of diagnosis, were to be dealt with by the reasonable satisfaction standard in s 120(4).
The Full Court observed that it made good sense to apply the reasonable satisfaction standard to the question whether a disease or injury existed given that evidence concerning that issue was far more likely to be readily available than evidence relevant to causation. The Court observed that the language of ss 120(1) and (3) assumed the existence of a relevant disease or injury. The functions of those sub-sections was to specify the standard of proof to be used when determining whether the disease or injury related to the operational service rendered by the veteran, and not whether the veteran was presently suffering from any such disease or injury."His Honour followed Cooke (supra). The Tribunal notes that in doing so, he took account of Preston vRepatriation Commission (1993) 45 FCR 214 and Repatriation Commission v Deledio (1998) 83 FCR 82, in the following manner:
"I see nothing in the judgment of the Full Court in Deledio which is in any way supportive of the views of Beazley J in Preston, or in any was inconsistent with the judgement of the Full Court in Cooke. Even if I were persuaded that Deledio and Cooke were in conflict, I would unhesitatingly follow the decision in Cooke."
The Applicant accordingly submitted that the standard of proof in respect of the clinical onset of ischaemic heart disease was that of reasonable hypothesis pursuant to sections 120(1) and (3) of the Act. The Respondent placed a different interpretation on the above authorities, submitting that the standard of proof for that particular issue was one of reasonable satisfaction pursuant to section 120(4). In referring to Gosewinckel (supra), he questioned whether clinical onset was based on actual diagnosis, as was the case on the death of the veteran, or at some earlier and undefined period, (which would be necessary if the conditions of Factor 5(f) (iii) of the SoP were to be approached), and accordingly the standard of proof must be one of reasonable satisfaction. Whilst both parties referred the Tribunal to Robertson and Repatriation Commission (AAT 12666, 2 March 1998), the Applicant did so in the context that the decision in that matter was based on the standard of proof of beyond reasonable doubt, and that remained relevant in the light of the later decisions in Cooke (supra) and Gosewinckel. The Tribunal follows the reasoning in Cooke and Gosewinckel and takes account of the standard of proof assumed in Re Robertson, where the circumstances closely parallel the facts in this matter. Accordingly, the standard of proof required to establish causal relationship between the cause of death, coronary atherosclerosis and service in this matter is that in sections 120(1) and (3) of the Act.
The requirement under sections 120(1) and (3) was authoritatively addressed by Mason CJ, Gaudron and McHugh JJ at 571 in Byrnes v Repatriation Commission (1993) 177 CLR 564:
"The position may be summarised as follows: (1) First, sub-s(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis."
Section 120A(3) of the Act refers to the use of SoPs in the establishment of a reasonable hypothesis, and is relevant in this matter. In Deledio (supra), the Full Court supported an earlier judgment by Heerey J in Deledio v RepatriationCommission (1997) 47 ALD 261, and went on to state:
"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 exists, the application must fail.
…
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 s 196B(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.
The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused…If not so satisfied, the claim must fail."
Thus the hypothesis is considered on its merits in accordance with the principles laid down in Byrnes v Repatriation Commission (1993) 177 CLR 564.
The material before the Tribunal must point to the hypothesis (Re Robertson (supra)). In this matter, and as noted at paragraph 10, the cause of death was not in dispute, having been ascertained by post mortem, and the Respondent conceded that the veteran's smoking habit was war caused. The issue therefore is whether the circumstances fit the requirements of SoP 80 of 1998. That is, whether the clinical onset of the veteran's ischaemic heart disease occurred within the smoking criteria and time constraints of Factor 5(e) or 5(f). The Tribunal is satisfied beyond reasonable doubt that there is no credible material before the Tribunal that supports the argument that the veteran was smoking "at least five cigarettes per day…for a period of at least one year immediately before the clinical onset of ischaemic heart disease" pursuant to Factor 5(e). Therefore the matter must be considered against Factor 5(f), the most beneficial subsection for the veteran being Factor 5(f)(iii).
Ischaemic heart disease is defined in Instrument No. 80 of 1998 as:
"…
a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
myocardial infarction (old or new); or
(ii)angina; or
arrhythmia with ECG evidence of myocardial ischaemia; or
cardiac failure
…"
In Re Robertson (supra) Professor Pitt and Dr King gave evidence for the Applicant. The Tribunal in that matter concluded (paragraph 23) that:
"On that evidence, we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time."
This reasoning was followed by the Tribunal in McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428.
The evidence before this Tribunal from Dr Barton, the treating doctor, is that the veteran had "no symptoms of ischaemic heart disease" prior to his death. Dr Miller opined in his report and in oral evidence that based on the evidence given him by the Applicant that the veteran had chest tightness and fatigue for about ten years prior to his death, evidence that was also given to the Tribunal by the Applicant, there is a reasonable hypothesis that these conditions were due to ischaemic heart disease. He considered there was a reasonable hypothesis that the veteran was suffering from "undiagnosed angina pectoris and fatigue on exertion since 1990". In cross examination, Dr Miller conceded that chest pain is not necessarily an indication of heart disease. Professor Richards opined that the exertional dyspnoea for ten years prior to death "may have been at least partly due to myocardial ischaemia". In his second report (Exhibit R3) he concluded that "it is my opinion that a reasonable hypothesis exists (not on the balance of probabilities) that there was clinical evidence of myocardial ischaemia 10 years prior to his death". However he goes on to say that "dyspnoea prior to death could have been explained solely on the basis of chronic airflow limitation and asthma". Both he and Dr Miller were of the opinion that chronic airflow limitation and asthma may have masked the symptoms, and hence diagnosis of ischaemic heart disease. In response to a question from the Respondent, Professor Richards stated in his first report that "differential diagnosis to explain dyspnoea during a decade or more prior to death should have included ischaemic heart disease".
The evidence of the Applicant as to her husband's habits and health, and the evidence of Professor Richards and Dr Miller are sufficient, in the view of the Tribunal, to support the contention that a reasonable hypothesis can be raised connecting the veteran's death with service, pursuant to SoP No. 80 of 1998 and section 120(3) of the Act.
The Tribunal must now be satisfied pursuant to sections 120(1) of the Act, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran was war-caused. It having been conceded that the veteran's smoking habit was related to service, and the Tribunal having accepted the evidence that he ceased or reduced his smoking habit in the mid 1970s, the issue in contention is whether the clinical onset of ischaemic heart disease occurred prior to the mid 1990s and if the requirements of Factor 5(f)(iii) are to be met. Pursuant to section 120(6) of the Act, there is no onus of proof on either party on any matter relevant to this claim.
There is nothing in the evidence of the treating doctors Romero and then Barton that the clinical onset of ischaemic heart disease occurred prior to the death of the veteran. The Respondent notes that from the medical records made available to the Tribunal, Dr Barton saw Mr Williams over 50 times, yet stated that "he had no symptoms of ischaemic heart disease". At Exhibit R1, Dr Barton confirms that the veteran only started attending the Shoal Bay Medical Centre in 1996. No prior medical records are available to the Tribunal, although reference was made by Dr Barton in Exhibit A4 that Dr Pidcock diagnosed diabetes mellitus in 1993. Both Dr Miller and Professor Richards postulated that dyspnoea could have been due to ischaemia, however neither was able to offer an explanation as to why this had not been so diagnosed, other than the symptoms being masked by the chronic airflow limitation and asthma. The Tribunal notes the reliance placed by Dr Miller on the article by Dr McGill in the American Heart Journal, but is bound by the principles established by the Repatriation Medical Authority in terms of clinical onset, and takes account of the evidence given in respect of the interpretation of clinical onset in Re Robertson (supra). In respect of the Medical Impairment Assessments undertaken by Dr Romero in 1997 and 1998, the Respondent submitted that whilst the assessments under chronic airways limitation and asthma showed some deterioration, there was no evidence to link this with heart disease, and no indication of chest pains.
On the material available to the Tribunal, the Tribunal is satisfied, beyond reasonable doubt, that there is no credible evidence or material relating to symptoms applicable to the clinical onset of ischaemic heart disease in 1995/1996, which would be necessary in order to meet Factor 5(f)(iii). That is, there is no sufficient ground for determining that the death of Mr Williams was war-caused.
The Tribunal must therefore affirm the decision under review.
I certify that the thirty-eight (38) preceding paragraphs are a true copy of the reasons for the decision herein of:
Rear Admiral A R Horton AO, Member
Signed: .....................................................................................
AssociateDates of Hearing 2 November 2000
Date of Decision 15 December 2000
Counsel for Applicant Mr M Vincent
Advocate for the Respondent Mr P Godwin
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