Smith and Repatriation Commission [2002] AATA 28 (17 January 2002)

Last Updated: 22 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1325

VETERANS' APPEALS DIVISION )

Re Vera Rosina Smith

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date 17 January 2002

Place Sydney

Decision The Tribunal affirms the decision under review

..............................................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - claim for widow's pension refused - husband's death not war caused - exposure to gassing while on active service - later development of breathing and other problems not connected - pneumonia due to other factors

Repatriation Commission v Smith (1987) 74 ALR 537, 547

Repatriation Commission v Cooke (1998) 28 AAR 400

Veterans' Entitlements Act 1986 - ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1)(c), 13(1)(a), (c), 14(1), (3), (4), 20(1), 30(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.

REASONS FOR DECISION

M J Sassella, Senior Member

History of the Application

1. On 24 January 1969 Vera Rosina Smith ("the Applicant") lodged a statement with the then Commonwealth's Repatriation Department Branch in New South Wales ("the department") asserting that the death of her husband, Ernest Smith ("the veteran"), was war-caused (T4).

2. On 25 February 1969 the Applicant lodged a formal claim form for widow's pension with the department, claiming that the death of her husband was war-caused (T6). The veteran's hospital record stated that when he died on 28 April 1968 he was suffering from ischaemic heart disease ("IHD"), with a final diagnosis of pneumonia and IHD with cardiac failure (T7).

3. On 22 April 1969 the Applicant's claim was rejected by the then Repatriation Board (T10). No reasons were included with this decision.

4. On 11 July 1969 the Applicant lodged an appeal against this decision with the Repatriation Commission ("the Respondent") (T11). She attached supporting documentation, including a statement from the veteran about his wartime experiences and injuries. These will be examined later in these reasons.

5. On 18 August 1969 the Respondent disallowed the Applicant's appeal, the veteran's death not being accepted as war caused (T14).

6. On 17 August 1998 the Applicant lodged another claim for a war widow's pension with the Department of Veterans' Affairs ("the DVA") (T15). She attached the veteran's death certificate to the form, which noted cause of death as left ventricular failure, myocardial ischaemic and right lower lobe pneumonia (T16).

7. On 19 August 1998 the Respondent decided that the death of the veteran was not related to his army service (T19). The Respondent applied the Statement of Principles ("SoP") concerning IHD and noted that clinical onset of the condition must be within two weeks of exposure to gas (nitroglycerine or nitroglycol). The veteran did not contract the condition within the period of his operational service nor within two weeks of its termination. The Respondent further examined the veteran's inability to undertake vigorous exercise and other aggravating factors, but found that the evidence did not raise a reasonable hypothesis linking the veteran's death to his war service.

8. On 26 October 1998 the Applicant wrote to the DVA requesting a review pursuant to section 31 of the Veterans' Entitlements Act 1986 ("the Act") and, failing favourable consideration in that context, a further review pursuant to s 135 by the Veterans' Review Board ("the VRB") (T20). The Applicant stated:

"I believe that the gassing during the war left my husband susceptible to pneumonia, which was the contributing factor to his death."

9. On 11 December 1998 the DVA wrote to the Applicant informing her that it had elected not to conduct a review of her case pursuant to s 31 of the Act (T21).

The decision under review

10. On 15 July 1999 the VRB affirmed the Respondent's decision in relation to the death of the veteran (T22). The Applicant's case was that there was a chain of causation in relation to pneumonia having developed as a result of gassing attacks in France. He was hospitalised and subsequently discharged as a result of the gassing incident on 22 March 1918. The Applicant's advocate also called the VRB's attention to a factor in the SoP concerning bronchitis that referred to lewisite and mustard gas. The advocate noted that the Wagga Base Hospital patient file summary made the final diagnosis of broncho-pneumonia, IHD with cardiac failure.

11. While the VRB accepted the Applicant's assertions that her husband had always had breathing problems, it could find no evidence that the veteran had a history of pneumonia. The VRB noted that there was no SoP concerning breathing problems. The SoPs concerning bronchitis and pneumonia, while listing exposure to mustard gas or lewisite as contributing factors, cannot be considered in relation to pneumonia. The VRB found no more than a temporal connection between the gassing incident and the veteran's pneumonia.

12. The VRB noted that the primary cause of death was left ventricular failure and myocardial ischaemia and examined the SoP concerning IHD. It found no relevant factors that applied to the veteran. The VRB found that none of the evidence raised a reasonable hypothesis pursuant to section 120(3) of the Act linking the death of the veteran to his service in World War I.

13. On 31 August 1999 the Applicant lodged an application for review with the Administrative Appeals Tribunal ("the Tribunal") (T1).

14. The Applicant died on 22 September 1999.

Relevant legislation

15. The following provisions from the Act are relevant: sections 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1)(c), 13(1)(a), (c), 14(1), (3), (4), 20(1), 30(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.

Veterans' Entitlements Act 1986

...

6A Operational service - world wars

(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.

Operational service

Item Person Nature of service

1 A member of the Defence Force (a) continuous full-time service outside Australia during a war to which this Act applies

...

7 Eligible war service

(1) Subject to subsection (2), for the purposes of this Act:

(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and

...

8 War-caused death

(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

...

11 Dependants

(1) In this Act, unless the contrary intention appears:

dependant, in relation to a veteran (including a veteran who has died), means:

...

(c) a widow or widower (other than a widow or a widower who marries or re-marries); or

...

Division 2 - Eligibility for pension

13 Eligibility for pension

(1) Where:

(a) the death of a veteran was war-caused; or

...

(c) in the case of the death of the veteran--pensions by way of compensation to the dependants of the veteran; or

...

14 Claim for pension

(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).

Note 1: some dependants do not have to make a claim (see section 13A).

Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).

...

(3) A claim for a pension:

(a) shall be in writing and in accordance with a form approved by the Commission;

(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).

(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.

...

20 Dates of effect that may be specified in respect of grant of claim for pension

(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

...

Division 5 - Rates of pensions payable to dependants of deceased veteran

30 Rates at which pensions are payable to dependants

(1) Subject to subsection (3), the rate at which pension is payable under this Part to a dependant of a deceased veteran, being a person who is the widow or widower of the veteran or a reinstated pensioner in relation to the veteran, is a rate per fortnight equal to the sum of:

(a) $312.10 per fortnight; and

(b) $25 per fortnight; and

(c) the supplement amount per fortnight provided for in subsection (1A).

...

120 Standard of proof

(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.

Note: This subsection is affected by section 120A.

...

(3) 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:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) 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.

Note: This subsection is affected by section 120A.

(4) 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.

Note: This subsection is affected by section 120B.

...

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

...

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

...

(3) 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) a Statement of Principles determined under subsection 196B (2) or (11); or

(b) a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

...

Part XIA - the repatriation medical authority

Division 1 - Establishment, functions and powers

...

196B Functions of Authority

(1) This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a) operational service rendered by veterans; or

(b) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Note 1: For sound medical-scientific evidence see subsection 5AB (2).

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

Note 3: For factor related to service see subsection (14).

...

196D Disallowable instrument

A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

...

Background

16. The veteran was born on 24 June 1886. His family included six brothers and one sister. He had the accepted condition of deafness in both ears. By 1948 the veteran was completely deaf. The veteran had enlisted on 26 July 1916 at the age of 30 years and rendered operational service in the Australian Army from 22 July 1916 to 13 April 1919 in World War I (T22). He was gassed and shot in the ankle during his service in France. The veteran died on 28 April 1968.

17. The veteran worked as a farmer/grazier all his life, both before and after his army service.

Documentary medical and other evidence/chronology

18. On 22 and 30 March 1918 the veteran was injured by "gas attacks." On 3 April 1918 the veteran was gassed whilst on active service in France (T3/11).

19. On 28 or 29 August 1918 the veteran was shot through the right ankle whilst on active duty in France (T3/6-7). On 6 March 1919 the Medical Board found that there was no ongoing disability as a result of this injury.

20. In April 1955 the Applicant made a copy of a letter that the veteran sent to the Respondent in support of his initial application for pension (T13). He stated that he was gassed on October 4 1917 at Prowes Point and subsequently hospitalised. [This should perhaps be 3 April 1918 as per the war service records.]

21. On 19 September 1956 Dr Smith, local medical officer, stated that the veteran's chest was clear and, apart from this deafness, he was otherwise fit (Ex R2).

22. On 17 February 1969 Dr Lewis, local medical officer, noted that he had been treating the veteran for hypertension "since the 1950s" (Ex R2). He noted the Applicant's deafness and his gastric and liver upsets but made no mention of any respiratory condition.

23. On 18 April 1969 a medical report stated the following:

"Myocardial ischaemia is due to atheromatous degeneration of the coronary artery tree. It is a common condition from middle life onwards. Risk factors are hypertension, high blood fats, cigarette smoking, physical inactivity, diabetes, gout, obesity, a thrombotic tendency and certain forms of psychogenic stress.

...

"There is no evidence [that the member] suffered from myocardial ischaemia [whilst on service]." (T9/20-21)

24. The report further stated that the death of the veteran was related to his age (82 years), not his war service.

25. On 10 August 1998, attached to the formal claim for widow's pension, was a statement by the Applicant in support of her claim (T18). She stated:

"...It was the gassing that did the most damage however, causing him great distress in later years.

"He had continual throat, lung and breathing problems where he would choke up and find it hard to breathe. He continually sucked on Hudson's Eumenthol Jubes. He always slept on the enclosed verandah with canvas blinds for protection, but stated he need air otherwise he became choked and fought for the next breathe [sic] all the time...

"On the day of his last illness, he was outside sitting in the noon sun for a while, then came inside complaining of pain in his ribs, which progressed to being very severe and he was rolling in pain..."

26. The veteran's specialist, Mr Childs, had apparently stated at the time that "gassed lungs and pneumonia go hand in glove."

27. On 24 December 1999 Dr Jonathan Rutland, consultant respiratory surgeon, provided a medical report on the veteran (Ex A1). He had been specifically asked to comment on :

1) Whether the veteran's pneumonia was related to his gassing during service.

2) Whether the gassing led to life-long breathing problems and the development of pneumonia.

3) The validity of the comment "gassed lungs and pneumonia go hand in glove".

4) Whether the veteran's gassing during service led to the development of his pneumonia.

28. Dr Rutland noted that the veteran was in good health upon enlistment and that his heart and lungs were healthy. He stated that of the three main gases used in World War I chlorine gas was the most widely used. Dr Rutland worked on the assumption that this was the gas that affected the veteran. He stated the following in relation to the long-term effects of chlorine gas:

"The effects of inhalation of chlorine gas have been studied. Heavy exposures occurred during World War I but have also occurred in peacetime as a result of accidental exposures - often in an occupational setting. In those who survived chlorine gassing during World War I most of the effects were relatively short-lived with recovery after some days and it is widely believed that they recovered without long term respiratory effects. However a minority did develop long term respiratory problems as a result of the acute gassing event and it is likely that this occurred in those soldiers who sustained respiratory damage that took longer - weeks - to recover. It can be presumed that Mr Smith was in this situation since he required hospitalisation and was not able to return to his unit for 39 days.

"The evidence provided by Mrs Smith suggests long term respiratory problems which, in this farmer/grazier who never smoked, are likely to have been due to his gassing in 1918."

29. Dr Rutland further stated that it was quite possible that the gassing incident caused chronic respiratory disease with chronic airflow limitation, chronic bronchitis or airway hyperreactivity and that one of those conditions predisposed the veteran to contracting pneumonia, contributing to his death. Dr Rutland did not agree unreservedly with the assertion that "gassed lungs and pneumonia go hand in glove" but stated that it was quite possible that the gassing led to long term lung damage in the veteran. Dr Rutland further offered the opinion that the sequence of events raised a reasonable hypothesis connecting the gassing incident in World War I with pneumonia which contributed to the veteran's death.

30. In February 2000 Professor Breslin, consultant thoracic surgeon, provided a report on the veteran at the request of the Respondent (Ex R1). He noted that the gassing was of sufficient severity to cause his evacuation to hospital and that this signifies that it is possible that such a gassing caused "long term problems." Professor Breslin further stated, "I have seen a number of civilians who sustained permanent damage to the airways from chlorine gas exposure." However he also noted that there was no medical documentation that provided any evidence of any chronic respiratory problems from 1918 onwards. Professor Breslin stated the following in relation to the likelihood of the sequence of events and its relationship to permanent lung damage:

"If the gassing had caused permanent respiratory damage then it is highly likely, indeed I believe invariable, that he would have been evacuated out of the battlefield and never allowed to return...It is not possible that he made a recovery from the gassing, re-joined his battalion, and then subsequently months or years or decades later started to develop respiratory problems from the gassing, as this is not a sequence of events that occurs following gassing that occurred in World War I...the fact that he re-joined his battalion suggests that he fully recovered from the gassing that had occurred and would have been left with no permanent sequelae."

31. He further noted that in the Wagga Wagga Base Hospital notes there was no mention of any respiratory condition. Professor Breslin noted that the veteran had IHD and that this can cause dyspnoea and that he may have had this condition for some years prior to his death. There was no medical evidence of longstanding lung disease. He found in conclusion that the veteran had pneumonia and that this was a terminal event, however this condition was not related to the gassing in World War I. Rather it was due to his old age and debility and his IHD.

32. On 25 November 2000 Dr Rutland provided a supplementary report on the Applicant (Ex R3). In addressing the question of what the terminal event was in causing the veteran's death, he stated that only a post-mortem would have made a definitive answer possible. However he considered three conditions possible:

"i) "cardiac disease - cardiac failure and atrial fibrillation on a background of ischaemic heart disease.

ii) pneumonia - this would have been contributed to by (i) and may have been contributed to by underlying lung disease.

iii) an acute abdominal problem such as bowel ischaemia which can occur in patients dying of other causes."

33. Dr Rutland was of the opinion that the most likely cause of death was the first factor listed. He noted that cardiac failure also results in congestion of the lungs with blood which can predispose the patient to pneumonia. Dr Rutland stated that the cause of the pneumonia was probably bacterial. He further opined that IHD did contribute to the development of his pneumonia, but only indirectly.

Hearing and appearances

34. The Tribunal convened a hearing on 29 November 2000. Mr Vincent of Counsel represented the Applicant and Mr Godwin from the advocacy section of the DVA represented the Respondent. The following materials were taken into evidence at the hearing and marked as exhibits:

* Exhibit TD1 - Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

* Exhibit A1 - Report of Dr J Rutland, respiratory physician, dated 24 December 1999.

* Exhibit A2 - Applicant's statement of facts and contentions dated 6 January 2000.

* Exhibit R1 - Report of Professor A B X Breslin, thoracic physician, dated February 2000.

* Exhibit R2 - The veteran's War Pension Entitlement Appeals Tribunal documents.

* Exhibit R3 - Report of Dr Rutland dated 25 November 2000.

* Exhibit R4 - Respondent's statement of facts and contentions dated 28 November 2000.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

35. The Tribunal makes the following uncontroversial findings:

* The veteran engaged in operational service from 22 July 1916 until 13 April 1919 (T2, T22)

* The Applicant lodged a valid claim on 17 August 1998 (T15).

* The date of effect of any decision favourable to the Applicant would be 17 May 1998 (s 20(1) of the Act).

* There are two relevant standards of proof. The standard in respect of whether a disease of the type alleged by the Applicant was present is proof to the reasonable satisfaction of the Tribunal (s 120(4) of the Act). This equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

* The standard of proof in relation to whether any alleged disease was war-caused is the reasonable hypothesis standard (s 120(1), (3) of the Act).

36. The issues in this matter are:

1. Did the Applicant have a respiratory ailment?

2. If so, what was its most likely diagnosis?

3. Was the ailment war-caused?

37. Mr Vincent, for the Applicant, said that it was accepted that the Applicant had been gassed while on operational service. He had been hospitalised for many weeks as a result. The Applicant argued that the veteran developed a respiratory condition from the gassing that stayed with him throughout life. Mr Vincent sought to convince the Tribunal to reject Professor Breslin's suggestion that the veteran's symptoms must have subsided before the end of World War I because he returned to his battalion.

38. Mr Vincent commended to the Tribunal the Applicant's statement in T13/29-30 as a contemporaneous statement created not for the purposes of this application. This appears to have been written on 11 July 1969 (Ex R2/8). That statement suggested that the veteran had breathing difficulties from before the end of World War I and after that when the Applicant met him.

39. Mr Vincent described the illness as an unspecified respiratory condition connected to the gassing. He referred to a disease classification in the International Classification of Diseases ("ICD") that fits such a disease. It is reference 506, "respiratory conditions due to chemical fumes inhaled". [The Tribunal observes that the ICD classification now seems to be J68.3.] Mr Vincent argued that the hypothesis was queried solely because of Professor Breslin's report (Ex R1) which suggested that the condition ceased to exist during service.

40. Dr Rutland, who had provided Ex A1 and R3, gave oral evidence. He considered the ICD classifications and agreed with Mr Vincent that the veteran may have had bronchitis, disease number 506.0, "bronchitis and pneumonitis due to fuels and vapors". Dr Rutland considered the veteran not to have emphysema because it did not appear in x-rays. Dr Rutland commented on the paucity of evidence and on the need to rely heavily on the Applicant's statements about the veteran's health.

41. Dr Rutland addressed Ex R2/8, the Applicant's statement dated 11 June 1969. That statement read as follows:

"Gas at Prowes Point April 1918, was a great believer in deep breathing exercises every day. Also Hudsons Eumenthol medication Drs. orders some years before I met him, used to choke up, hard to breathe at times dry cough, pains around ribs. He never drank was made. Always slept where he could get plenty of air on verandah. Some nights had to prop him up to get air in his lungs. He would tell me dont worry only effects of war days gas it will get me one day. Last illness he seemed very well, was dressed to go out have a good midday meal then sat in the sunfor awhile, came inside said he would lay down for awhile, pain in ribs which got so severe he rolled in pain. Ve [sic] took him to out patients at Wagga Base Clinic, specialists attended him and had him admitted, pneumonia, in 48 hours we had lost him, had oxygen. When I asked Dr. Childs about gas he told me that pneumonia and gas go hand in glove and gas was missing link."

42. Dr Rutland commented that this statement showed that there had been ongoing respiratory problems because of the shortness of breath and the dry cough. It seems not very severe. This would fit with chronic bronchitis or could be a component of asthma. The reference to the Hudsons medication suggested that the veteran needed something to clear his clear his air passages and break up mucus. He appears to have used this for a lengthy period of time. The fact that the veteran neither drank nor smoked made it more likely that the gassing caused his complaints. Dr Rutland considered the gassing a very significant episode as it took the veteran away from his unit for a long time. He was gassed on 22 March 1918 and left hospital to rejoin his unit on 30 April 1918 (T3/11). Dr Rutland considered that the length of the veteran's hospitalisation suggested that the veteran's exposure to chlorine gas was a lot worse than the exposure suffered by modern victims of industrial accidents who spend much less time in hospital.

43. The reference to the veteran sleeping on the verandah was consistent with Dr Rutland's experience that people with chronic respiratory disease often have a sensation of difficulty getting air and like to sleep in open spaces, or near open windows or run a fan. This again suggested a long-term lung problem.

44. The reference to sitting the veteran up to breathe was consistent with Dr Rutland's experience that some people find breathing easier when sitting than when lying down. This could imply a respiratory or a cardiac condition.

45. Dr Rutland considered also the Applicant's statement in T18 written on 10 August 1998. That statement was substantially similar to the statement quoted above. However, in the second paragraph the Applicant wrote, "He had continual throat, lung and breathing problems where he would cough up and find it hard to breathe". Dr Rutland considered that the coughing up must have referred to the coughing up of secretions which are obstructing the upper airway. These are secretions produced in excess of what can be removed by the body's innate mechanisms.

46. The second statement refers to the veteran "fighting for breath" unless he could sleep on the verandah. Dr Rutland commented that this was further evidence of respiratory problems. A particularly sticky type of excess secretion can adhere to the airways and cause choking and fighting for breath. That this occurred in the veteran's sleep suggested to Dr Rutland an even greater degree of severity in the condition.

47. Dr Rutland spoke also of reactive airways dysfunction syndrome. This exists where a person is injured by, say, the inhalation of chlorine or another irritant gas. The airways are hyper-reactive in response to an irritant such as the gassing. This could take some time to develop after the gassing.

48. Dr Rutland could not say anything of note about there being a lack of medical history concerning the veteran's respiratory problems. However, he commented on the hospital record (T7 and Ex R2/3) relating to the veteran's death. That states that "[e]xamination of the lungs revealed diminished air entry at the right of the lower lobe with rales over this area". Crepitations or discontinuous sounds were detected also. Rales are breath sounds. Dr Rutland said that crepitations generally indicate secretions in airways or alveoli. He had scattered rhonci also. These are continuous sounds or wheezes. These can accompany pneumonia or cardiac failure.

49. There was reference to the hospital detecting respiratory distress with tachypnoea and slight wheezing. Tachypnoea is increased rate of breathing. Dr Rutland saw this as consistent with pneumonia. Dr Rutland saw these notes as suggesting that at the time of the veteran's admission to hospital to die he had a respiratory abnormality on both sides of the lung.

50. Dr Rutland addressed an x-ray report emanating from the hospital. It referred to spotty consolidation in the right lower half of the lungs. Dr Rutland saw these as areas of consolidation in the lung which are the start of what could become the entire consolidation of the lung if not treated. He considered that there may be consolidations not yet seen on x-ray in the remainder of the lungs. This pneumonic effect arises from pneumonia that is not of bronchial origin.

51. Dr Rutland commented on Professor Breslin's comment in Ex R1 that, "If the gassing had caused permanent respiratory damage then it is highly likely, indeed, I believe invariable, that he would have been evacuated out of the battle field and never have been allowed to return". He thought it a strong statement. Few things in medicine are invariable. A person could have a lung injury from chlorine and recover sufficiently to return to active service and then develop problems afterwards. He may have had continuing symptoms but been seen as fit to return to service. At page P-24 of the transcript Dr Rutland says, "it's quite common, I think, to recover well enough to return to a former activity. For example, the sort of thing I might expect is the patient might have a cough and still go back to certain - in the army, I mean, these were war times. Another possibility is that the patient was relatively stable, and might not have complained greatly about his symptoms, and I also think it's possible to recover, to recover to the point where you have no symptoms and no signs but still have some lung damage". The patient may even be unaware of that damage.

52. Dr Rutland observed that the veteran could clearly go on to work as a farmer. He did this while experiencing a chronic cough and episodes of shortness of breath.

53. Dr Rutland said that, as regards gassing, most victims recovered but a minority went on to have long term sequelae. Asked to comment on Professor Breslin's view that a person could not recover from a gassing and then months, years or decades later, start to develop respiratory problems from the gassing, said that it is possible to develop symptoms months or years after a gassing. He did not think this could occur decades later.

54. In cross-examination the following emerged:

* Dr Rutland said that the veteran's immobility in the days leading to his death could have contributed to the veteran's respiratory problems and pneumonia which he had at the time of death. This immobility appeared to be caused by the veteran's abdominal and heart problems.

* On 25 February 1969 the Applicant in a claim form said that the veteran "was gassed on service and suffered over the years from colds" (Ex R2/4). Dr Rutland agreed that this description suggested that the veteran suffered from viral respiratory tract infections from which he recovered fully each time. However, he also considered that, to a lay person, the "colds" description could apply to a respiratory condition of the sort alleged in this application.

* Some documents reported that the veteran had sinus trouble. Dr Rutland agreed that this could be a reference to sinusitis which can cause coughing and clearing of the throat.

* The veteran's work in Wagga as a farmer/grazier could have exposed him to rhinitis if he had been allergic to airborne irritants or pollens. He distinguished this from sinusitis.

* The veteran's own general practitioner, Dr Lewis, wrote on 17 February 1969 (Ex R2/2) that he had treated the veteran since the late 1950s for hypertension, that he had had complete deafness since World War I and that he had had various gastric and liver upsets in 1967 and 1968. There was no mention of any respiratory problem. Dr Rutland would expect a practitioner who had treated the veteran over that period to be aware of any respiratory disease.

* An earlier general practitioner, Dr Smith, had written in 1956, "Chest clear. ... Otherwise fit." (Ex R2/2).

* The pain experienced by the veteran just prior to his final hospitalisation as described by the Applicant (T13/30) (see above at paragraph 41) could have been caused by coughing but the Applicant described progressively very severe pain. Coughing does not generally cause such severe pain in the ribs, however it can sometimes cause such pain. Dr Rutland agreed that, more generally, the Applicant's statement from 1969 at T13/29-30 described the veteran's symptoms more generally and then as they were just before death. In relation to the earlier symptoms it is unclear as to the time period referred to. It may have been just the final years of the veteran.

55. Professor Breslin also gave oral evidence. He said:

"I'm of the view that he had heart disease, he had... he had hypotension and of course he had deafness which didn't play a part in his death. He was debilitated. He had some intra abdominal catastrophe not long before his admission to Wagga and he died with pneumonia as a complication of all of that and heart disease was the predominant terminal event." (Transcript P-33)

56. Professor Breslin clarified that the pneumonia and the heart disease went together as cause of death. If he had not had the heart failure he would not have got pneumonia at that particular juncture.

57. The Professor discussed the symptoms of gassing (transcript P33-34). He said that they were

"predominantly respiratory and eye and sometimes mouth symptoms.... if the patient was not evacuated the gassing was never considered to be very severe. If the patient was evacuated, go to hospital, or out of the front line, the gassing was either a bit more than mild or severe. Generally speaking if it was severe that was it for them and they didn't get back to service. So I anticipate that the gassing that occurred in Mr Smith was mild to moderate such as to cause his evacuation from the front line at the time but that based on evidence available to me that his symptoms which would have been predominantly respiratory resolved left him with no sequelae. After that few weeks he went back to Lewis gun work and so on and served out his time in the army. The gassing symptoms then are cough, shortness of breath, wheeze. Often what we call ucarhea or an increased production of mucus from the lower respiratory tract and dizziness is usually very prominent symptom. Occasionally it's bad, they get cornea eye burns, they get burns to their mouth and they're usually pretty debilitated."

58. Professor Breslin claimed expertise in these matters on the following basis. "I was the consultant for the Department of Veterans Affairs which means essentially I was in charge of the clinical service for respiratory disease across Australia from 1979 to 1986 when the Comp Act was abolished, of having a consultant, that is somebody in charge of all respiratory units in veterans hospitals across the Australia, when the governments were saving money they were logging off repatriation hospitals. So I had experience plus many reports that I had to produce the various authorities in relation to it." (Transcript P-34)

59. Professor Breslin summarised that the symptoms are usually shortness of breath, coughing and wheezing. He went on to talk of the general history of a person who has been gassed. He said as follows:

"Yes, generally speaking with a significant gassing they are evacuated and they really never get better though they improve. If the symptoms are going to be permanent and ongoing and you will usually find that they've got chronic cough, chronic shortness of breath which interferes with their life, they've got wheezes when you listen to their chest. If you did their lung function it would be... Now that's the severe but I have got no patients now, there are only 26 World War I veterans still alive. I've got no patients now with that consultation of symptoms from World War I but I have many patients who have been occupationally exposed to some large amounts of chlorine, ammonia, which wasn't a gas but it produces the same thing. What actually it produces these gassing, product a thing called reactive airways dysfunction. That was only described in 1985... and that's a form of asthma really, it's a form of asthma where there is one off major insult which does something to the airwaves that we don't quite understand and causes the symptoms of asthma thereafter. So mild gassing, nothing much. You don't get evacuated, get on with the job that they had at the time. More significant gassing maybe evacuated but it usually recovers and it usually recovers within two years, that's the natural history of this sort of reactive airways dysfunction which term was never thought of the World War I. Finally, there's the severe group who get this major result are evacuated and the symptoms never disappear. They may wax and wane because that's the nature of asthma that they never really get back to normal and when you listen to them they've got wheezes, when you talk to them they've got chronic cough and sputum and shortness of breath that dates from the time of the gassing although its variability, there may be variability that exists, it dates from the time of the gassing, be it in World War I or in some other situation.... they do relate that to the gassing because it dates from it, so that they, well, got gassed permanently thereafter incapacitated, so they relate it to that." (Transcript P-35)

60. Professor Breslin considered that the veteran's symptoms could apply to sinusitis which could have caused him to cough.

61. Professor Breslin regarded as significant an entry in Ex R2 at page 6 where Dr Dalton, the veteran's general practitioner, said: "28 October 1965 had surgery for a cholecystectomy with an entirely uneventful post-operative course leading to discharge from hospital after 14 days". Professor Breslin said, "That, to me, is a very strong pointer against him having any disease, because the complication following cholecystectomy, particularly in those days, because it was major surgery, not keyhole [surgery] like we do now. Respiratory problems, in somebody with respiratory problems, is a major problem post-operatively. The other major problem is embolic disease, but there is no evidence of that." (Transcript, P-37)

62. Professor Breslin referred also to the notes from the Wagga hospital from the time of the veteran's death. The veteran was said to have no dyspnoea (Ex R2/3). Professor Breslin said, "So even when he is in for his terminal illness, he was reported to be not dyspnoeic, thus he had never seen a doctor for his chest symptoms from World War I until his terminal illness, that I can deduce, and even when his chest was checked, it was found to be clear, he was otherwise fit, no mention was made of it by Dr Lewis. He tolerated quite a significant operative procedure without any respiratory problems at all.... All these things add up to me to indicate that he had no significant respiratory symptoms from World War I until his terminal illness that are objectively documented in the notes, leaving his widow's statement aside for the minute and that to me is extraordinarily strong evidence against ongoing effect from the gassing 50 years later on." (Transcript, P-37)

63. In cross-examination Professor Breslin was asked whether it was invariable that a person evacuated in World War I following a gas attack would not have been allowed to return to his unit if he had suffered permanent injury. He said that he could not say that this was invariably so. He said, "that's what I believe but somebody might show me one or two cases where that wasn't the case" (transcript, P-46).

64. Professor Breslin in cross-examination held to his view that a soldier with permanent symptoms would not have improved to the extent that he would be returned to his unit. Although the symptoms could fluctuate in later years, this was not so in the early months. He rejected that symptoms could be quiescent and emerge up to 10 years after the gassing. Professor Breslin considered that the veteran had completely recovered from the gassing:

* He returned to active service after hospitalisation.

* He had no further hospitalisation.

* He was able to complete his active service.

* He was able to work fully thereafter.

* No abnormal chest symptoms were ever reported to a doctor that are known about.

* The doctors who saw the veteran as late as just prior to his death found a clear chest, no dyspnoea.

65. Professor Breslin attributed the Wagga hospital's observations of crepitations and wheezing in the lungs (discussed by Dr Rutland above at paragraph 47) as attributable to cardiac failure. The crepitations were of recent onset at the time of death. The veteran had not had them when seen by Dr Smith.

66. Professor Breslin addressed the Applicant's evidence that the veteran had slept on the verandah. He thought that attributable more to cardiac symptoms than to respiratory problems. Inhalation of cold air would cause the bronchial tubes to contract, a result not desired by people with irritable airways.

67. In his final submissions, Mr Vincent made the following points:

* The Applicant's hypothesis is that the veteran was gassed in World War I sufficiently seriously to require hospitalisation, that this led to an ongoing set of problems throughout the veteran's life including a respiratory disease which contributed to the heart disease that resulted in the pneumonia that caused the veteran's death.

* The full Federal Court in Repatriation Commission v Cooke (1998) 28 AAR 400 held that a decision-maker must reach a state of reasonable satisfaction as to the existence of the relevant disease. In the instant case the cause of death was pneumonia. The Tribunal can be satisfied that that disease was present and caused death.

* Mr Vincent identified the veteran's respiratory condition as ICD 506, "respiratory conditions due to chemical fumes inhaled". There is no SoP concerning this condition. Mr Vincent proceeded to submit that there is no SoP relevant to the veteran's disability. If the veteran had a respiratory condition, the hypothesis will stand so long as it is not disproved.

* Mr Vincent put to the Tribunal that Professor Breslin had modified in oral evidence the view he stated in Ex R1 so that he should be taken to say that generally people would be evacuated and not returned to their unit, not that this was the invariable practice. It is entirely possible, then, that someone will present with symptoms that are present but not so debilitating that they are prevented from returning to active service. Symptoms of such a type would have permitted the veteran to resume a normal civilian working life, as the veteran here did.

* Mr Vincent invited the Tribunal to reject Professor Breslin's opinion that the veteran's symptoms would have had to be patent from the time of the gassing for a period thereafter. He argued that they could not be quiescent and return after some years. He said that they would have to be patent for a period, that they could improve but later worsen. However, such worsening could not occur as much as a decade later. Mr Vincent indicated that the SoP on chronic bronchitis and emphysema (SoP 73/97) permits in clause 5(c) and (d) a clinical onset of chronic bronchitis and/or emphysema within 10 years of exposure to mustard gas, lewisite or irritant gas (such as chlorine). He suggested that this means that the Repatriation Medical Authority disagrees with Professor Breslin as regards a lag effect from exposure to gases. He did not suggest that this SoP was directly applicable in the instant case, however.

* Mr Vincent addressed the lack of records of complaint by the veteran to doctors about his respiration. He put that the veteran's records are incomplete. There is no pre-1950s material. His presentations that are evidenced relate to specific conditions or involve reports responding to specific unrecorded questions. It is of little surprise that these did not elicit any material on respiratory problems.

* The contribution of the veteran's respiratory condition was masked at the time of the veteran's death by the severity of his cardiac and pneumonia symptoms. His difficulty, as a profoundly deaf person, also prevented the taking of a reliable history. Nevertheless, there were some evidences of respiratory problems (see paragraphs 42-46 above).

68. Mr Godwin in his final submissions pointed out that the evidence that the veteran suffered from a respiratory condition is wholly contained in the Applicant's statements. [This is not quite accurate. See paragraphs 29 and 30 above.] Mr Godwin expressed some reservations about this material:

* Her first statement simply said that the veteran suffered for years from colds as a consequence of his gassing (Ex R2/4, 25 February 1969).

* She later said that the veteran slept on the verandah, had choking sensations and pain in the ribs from coughing (Ex R2/8, 11 July 1969).

* The veteran himself referred to advice that he might have a sinus operation (Ex R2/15, 3 May 1955), suggesting that he had a sinus problem. The doctors appearing before the Tribunal agreed that sinus can cause post-nasal drip, which can produce coughing. Professor Breslin said it can also produce a choking sensation.

* The veteran's own general practitioner on 19 September 1956 said that the veteran was fit and made no mention of respiratory disease (Ex R2/2). On 17 February 1969 another general practitioner who had been treating the veteran for "a period of almost 20 years" said he had treated the veteran for hypertension, gastric and liver problems, but made no mention of respiratory disease (Ex R2/2). While that doctor was assessing the veteran for hearing loss he nevertheless referred to other conditions and notably omitted reference to respiratory disease. Another general practitioner reported that the veteran had had IHD "for years" on 31 March 1969 (Ex R2/6) and yet another reporting on a cholecystectomy on 21 March 1969 (Ex R2/6), but neither mentioned any respiratory issues.

* In February 1969 the Wagga Base Hospital found him to have no chest pain or shortness of breath (Ex R2/3).

69. The disability that the Tribunal must, on the balance of probabilities, find the veteran to have suffered when he died must have contributed to his death. The Applicant's representative says that this was a respiratory condition due to inhalation of chemical fumes and vapours. He further says that this contributed to the veteran's death as it was one cause of the immobilisation of the veteran that provided the opportunity for the fatal pneumonia to develop.

70. The Applicant's representative can rely on several indicators that the veteran suffered from the alleged condition. He was indisputably gassed and the medical evidence seems to support that the gassing must have been serious to have led to five weeks of hospitalisation. There was the veteran's attempt to obtain a pension partly in respect of the respiratory conditions (T13/28) in 1955. There are the Applicant's statements dated 11 July 1969 (Ex R2/8) and 10 August 1998 (T18). There are the Wagga Base Hospital notes from 19 February 1969 (Ex R2/3-4) which contain a number of references to breathing difficulties such as crepitations in the base of the left lung, respiratory distress with rapid breathing and slight wheezing, a suggestion of bronchopneumonia. There was diminished air entry at the right of the lower lobe of the lungs.

71. Against this the Respondent made logical submissions in paragraph 68 above which amount to there being no objective evidence that the veteran had any respiratory disability at the time of death that could be related back to service. While he may have had a sinus problem resulting in post-nasal drip in the 1950s, which may have accounted for his coughing, there was an absence of reference to any respiratory condition such as that suggested by Mr Vincent. Further, this absence is curious when one considers that a number of the veteran's medical advisers commented in the 1950s and later on his various medical conditions, at least once relatively comprehensively (Ex R2/2), without referring to any respiratory disability.

72. The Tribunal considers that the weight of the available evidence favours a conclusion on the balance of probabilities that the Applicant had no more than a sinus condition of unknown aetiology but commencing most probably in the 1950s which explained his breathing and coughing symptoms as described by his widow. The Tribunal so finds. The Tribunal does not find that veteran suffered from bronchitis or pneumonitis due to fumes and vapours at the time of his death.

73. If the veteran suffered from sinusitis and it was chronic this might be a cause of death and may be a war-caused disability consistently with SoP 211/95 concerning chronic sinusitis. However, for chronic sinusitis to be accepted as existing, the Tribunal would need to find on the balance of probabilities that the veteran had this disease as it is defined in the SoP. The definition in clause 4 requires that there was "inflammation of the paranasal sinuses lasting for at least three months, of infectious (bacterial or fungal) or non-infectious aetiology, characterised by persistence of sinus-related symptoms and persistent radiographic evidence of structural damage to the sinus, attracting ICD code 473". The Tribunal's view is that it cannot find this an appropriate diagnosis on the balance of probabilities if only because there is no evidence of any persistent radiographic evidence of structural damage to the sinus.

Conclusion

74. The Tribunal has found that the veteran died from pneumonia, a disease that was not war-caused.

Decision

75. The Tribunal affirms the decision under review.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 29 November 2000

Date of Decision 17 January 2002

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Dibbs Crowther & Osborne

Counsel for the Respondent Mr P Godwin

Solicitor for the Respondent Department of Veterans' Affairs