Chivers and Repatriation Commission [2002] AATA 11 (11 January 2002)

Last Updated: 19 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 11

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1363

VETERANS' APPEALS DIVISION )

Re AUDREY CHIVERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell

Date 11 January 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[sgd] Dr J D Campbell

Member

CATCHWORDS

Veteran's Entitlements - widow's pension - whether veteran's death was war caused

Veterans' Entitlements Act 1986 - subsections 120(1), 120(3), 120A.

Statement of Principles Instrument No 38 of 1999 concerning Ischaemic Heart Disease

Statement of Principles Instrument No 31 of 2001 concerning Hypertension

Statement of Principles Instrument No 82 of 1999 concerning Diabetes Mellitus

REASONS FOR DECISION

Dr J D Campbell

1. In this matter, Mrs Audrey Chivers ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 6 October 1999, which determined that the death of Mr Thomas Chivers was not related to service. This decision had been reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 24 July 2000.

2. A hearing was held before the Tribunal at Lithgow on 12 November 2001 at which the Applicant presented oral evidence to the Tribunal. The Applicant was self represented but assisted by Mr MacInante, an Advocate from Legacy. The Respondent was represented by Ms Hardie, an Advocate from the Department of Veterans' Affairs.

3. The following matter material was placed into evidence before the Tribunal:

Exhibit Description Date

T1-23 pp1-120 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

T1-T27 pp1-174 T Documents in relation to a previous appeal - N1998/622

A1 Letter from the Applicant to the Tribunal 13 October 2000

issue

4. The relevant issue is whether the deceased veteran's, Mr Thomas Chivers', death is causally related to his service.

legislation

5. The relevant legislation in this matter is the Veterans Entitlement Act 1986 ("the Act") and in particular subsections 120(1), 120(3), 120(4) and 120A.

background

6. The Applicant lodged a claim on 5 October 1999 with the Respondent, that the death of Thomas Chivers was related to his service.

7. The late veteran, Thomas Chivers, served in the Army and had operational service from 5 February 1942 to 6 March 1945 during World War II.

8. The late veteran died on 29 June 1989 at the Lithgow District Hospital, with the cause of death registered as (T7, p10):

"(i) Acute Myocardial Infarction; and

(ii) Diabetes Mellitus

Essential Hypertension".

9. In the application, the Applicant stated that her late husband was diagnosed with diabetes mellitus in 1978 and treated thereafter with insulin. The treating doctors were Dr Mackay (General Practitioner) and Dr Dutton (Specialist Physician). Further, the late veteran was diagnosed by and treated for hypertension and obesity in 1981 and thereafter by the same two doctors (T7).

10. The application was refused by the Respondent on 6 October 1999 and in so doing determined that the Applicant's ischaemic heart disease was not causally related to service (T8).

11. The Applicant appealed this decision to the VRB on 25 October 1999 (T9). The VRB affirmed the decision of the Respondent on 24 July 2000, having considered the issue of whether the late veteran's obesity, diabetes mellitus and essential hypertension contributed to his death, and determining that none of the diseases in question were casually related to his war service (T11). The Applicant appealed to the Administrative Appeals Tribunal on 17 August 2000 (T1).

evidence of mrs chivers

12. The Applicant told the Tribunal about her late husband and how he had worked for the Ambulance Service of NSW until he retired in the mid eighties. Mrs Chivers raised her concerns that her late husband had experienced a stressful event when he was notified that his brother, a RAAF member, was missing, presumed dead on 15 February 1943, while serving overseas. Mrs Chivers stated that she felt her late husband carried a concern about this matter thereafter and for the rest of his life. Further, she was of the opinion that this may have had something to do with his other illnesses and played a part in the cause of his death.

13. Mrs Chivers also considered that the late veteran's service played a part in the development of his obesity and that this in turn contributed to his hypertension, which in turn contributed to the development of the late veteran's ischaemic heart disease and his terminal myocardial infarction.

clinical records

14. A review of the clinical records in evidence before the Tribunal reveals that:

(a) The late veteran was born on 15 June 1923. At the time of his enlistment medical on 13 November 1941 he was 68 1/4 inches tall and weighed 154 lbs. At his discharge medical on 14 March 1945 he weighed 179 lbs. On 7 November 1978 he weighted 204 lbs and on 11 December 1980 he weighted 236 lbs.

(b) The late veteran's blood pressure at the time of discharge was 115/80. It was recorded in the clinical notes that he was hypertensive before 1965.

(c) The late veteran suffered from insulin dependent diabetes mellitus from 1978 and there were periods in the clinical notes up to the time of his death where the attending medical practitioners experienced difficulty in maintaining appropriate control of his diabetes.

(d) The veteran was a non-smoker and a light social drinker.

submissions

applicant

15. The Applicant was firmly of the belief that the late veterans' operational service contributed to his death, and that, in particular, he had experienced a severe stressor, nominated as being the advice that his brother was "missing in action, presumed dead". The Applicant also believed that the late veterans' army service led to his weight increase and the eventual development of obesity, which was a factor in the causation of his ischaemic heart disease and his diabetes mellitus.

respondent

16. The Respondent contended that the late veteran developed the condition of obesity some years after his service, but not during his service. Further, that the late veteran developed hypertension sometime prior to 1965 and developed diabetes mellitus in 1978.

17. The Respondent contended that none of the factors in the relevant nominated Statement of Principles are satisfied, and that a hypothesis linking the late veteran's service and his death is deemed not to be reasonable one.

consideration and findings

18. The Tribunal, in considering all the evidence before it, concludes that such material does point to and raise the following hypothesis:

(a) that the late veteran's obesity was instrumental and/or contributed to the development of his hypertension in circa 1965 and his diabetes mellitus, and either, or both, of these diseases contributed to the causation of his ischaemic heart disease and his death from myocardial infarction; and

(b) that the late veteran suffered a severe stressor which caused the clinical onset of his ischaemic heart disease and his death from myocardial infarction.

19. In turning to the Statement of Principles ("SoPs"), the Tribunal notes that the relevant SoPs are those existing at the time of this hearing, or, alternatively, in the circumstance where they are more favourable to the Applicant, those SoPs existing at the time of the primary decision.

20. In this matter the Tribunal concludes that the relevant SoPs are:

* Instrument No 38 of 1999 concerning Ischaemic Heart Disease;

* Instrument No 31 of 2001 concerning Hypertension; and

* Instrument No 82 of 1999 concerning Diabetes Mellitus.

21. In each of the SoPs, the Tribunal notes the definition of the term "being obese" on account of this being a term used in a relevant factor within each SoP:

""being obese" means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of "being obese" signed by the Chairman of the Authority on 16 August 1996.

The measurement used to define "being obese" is the Body Mass Index (BMI).

The BMI = W/H2, where:

W is the person's weight in kilograms and

H is the person's height in metres.

"Being obese" is where the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. "Being obese" develops when energy intake is in excess of expenditure for a sustained period of time.

For a factor to be included as a cause of "being obese" it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater;"

22. In carrying through the necessary calculations, the Tribunal, having nominated the late veterans' height and body weight at various times, concludes that:

(a) On enlistment the late veteran's Body Mass Index was 24.

(b) On discharge the late veteran's Body Mass Index was 28.

(c) On 7 November 1978 the late veteran's Body Mass Index was 31.

(d) On 11 December 1980 the late veterans Body Mass Index was 36.

(e) Between enlistment and discharge the late veterans' weight increased by 16 per cent.

23. In addressing the relevant SoP for hypertension the Tribunal notes that the relevant factor within Instrument No 31 of 2001 is factor 5(a):

"being obese at the time of the clinical onset of hypertension".

The Tribunal also notes that as regards this SoP the term "being obese" means an increase in body weight by way of fat accumulation, which results in a Body Mass Index of 30 or more.

24. In considering whether or not the late veteran satisfies the template nominated, the Tribunal observes that the evidence raised points to the late veteran not satisfying the definition of "being obese at the time of discharge". Further, the Tribunal notes that there is nothing in the material which points to what was the late veteran's Body Mass Index at the time of the clinical onset of hypertension approximately some 18 to 20 years after his discharge. The Tribunal also observes that there is no material before it, which would assist in understanding whether the late veteran being obese in 1978, was in any way related to his operational service.

25. The Tribunal, in specifically noting again that the late veteran's weight only increased by 16 percent during his service, concludes that such material does not fit the template nominated within the SoP, about the causes of "being obese", particularly factor 5(a).

26. As a consequence of the Tribunal's considerations, the Tribunal finds that the material does not raise the necessary elements to meet the templates nominated in the following SoPs:

* Factor 5(a) of Instrument No 31 of 2001 concerning Hypertension;

* Factor 5(b) of Instrument No 82 of 1999 as amended by Instrument No 9 of 2001 concerning Diabetes Mellitus, with the Tribunal assuming that the late veteran's diabetes was type II, although treated with insulin;

* Factor 5(c) of Instrument No 25 of 1999 concerning Ischaemic Heart Disease;

in that the material does not point to "being obese" as being war caused.

27. In summary, the Tribunal deems the hypotheses raised, connecting the late veteran's death with "being obese", hypertension, diabetes mellitus and ischaemic heart disease, as not reasonable.

28. In relation to the Applicant's further contention that the late veteran's ischaemic heart disease and death may be connected to his service by way of the late veteran experiencing a severe stressor, the Tribunal, while noting the material which the Applicant points to and without making a finding as to whether or not the material satisfies the definitional requirements for experiencing a severe stressor, notes the content of the relevant Factor 5(p) of Instrument No 25 of 1999 concerning Ischaemic Heart Disease:

"experiencing a severe stressor immediately before the clinical onset of ischaemic heart disease"

29. In addressing Factor 5(p), the Tribunal, in noting that the material points to the late veteran's clinical onset of ischaemic heart disease shortly before his death, concludes that the late veteran's circumstances do not meet the template outlined, as the stressful event relied upon occurred some many years previously. Accordingly, the Tribunal deems the hypothesis, connecting the late veteran's death with a stressful event, not reasonable.

30. The Tribunal, in deeming all the hypotheses raised not reasonable, concludes that the late veteran's death was not war caused.

determination

31. The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: R Quinn .....................................................................................

Associate

Date/s of Hearing 12 November 2001

Date of Decision 11 January 2002

Representative for the Applicant Self, assisted by Mr MacInante

Advocate for the Respondent Ms Hardie