Harris and Repatriation Commission [2003] AATA 349 (17 April 2003)

Last Updated: 23 April 2003

DECISION AND REASONS FOR DECISION [2003] 349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/310

VETERANS' APPEALS DIVISION	)
	Re	IVY HARRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr IR Way, Member

Date 17 April 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.....................(Sgd).....................

IR Way

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - war widow's pension - whether death of veteran was war-caused - dementia - whether dementia was caused by Alzheimer's disease or a cerebrovascular accident - whether reasonable hypothesis can be established connecting veteran's death to his war service

Veterans' Entitlements Act 1986 ss 8, 119, 120, 120A

Re Campbell and Repatriation Commission [2001] AATA 559

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Lee (1981) 147 CLR 635

Holthouse v Repatriation Commission (1982) 1 RPD 287

Roncevich v Repatriation Commission (2001) 66 ALD 105

Bull v Repatriation Commission [2001] FCA 823

Re Cowie and Repatriation Commission [1999] AATA 334

Repatriation Commission v Deledio (1998) 83 FCR 82

Meehan v Repatriation Commission [2001] FCA 597

Benjamin v Repatriation Commission [2001] FCA 522

REASONS FOR DECISION

17 April 2003

Mr IR Way, Member

1. This is an application by Ivy Harris ("the applicant") for review of a decision of the Repatriation Commission made on 7 April 1999, and affirmed by the Veterans' Review Board ("VRB") on 19 February 2001, which determined that the death of the applicant's husband, Richard Harris ("the veteran") was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 ("the Act").

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and documentary evidence as follows:

§ Exhibit A1 Statement of Ivy Harris dated 9 June 2002

§ Exhibit A2 Statement of Ivy Harris dated 18 September 2001

§ Exhibit A3 Statement of Janette Harris dated 9 June 2002

§ Exhibit A4 Report of Dr JFR Love dated 28 March 2002

§ Exhibit A5 Documents relating to previous back claim

§ Exhibit R1 Report of Dr Glenda Powell dated 3 July 2002

§ Exhibit R2 Report of Dr Glenda Powell dated 29 March 1996

§ Exhibit R3 CT Scan - Dr Neil Orr

3. The applicant, the applicant's daughter Janette Harris, Dr Love and Dr Powell gave oral evidence. The applicant was represented by Ms M Brennan of Counsel and the respondent by Mr M Smith, Departmental Advocate.

4. Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.

5. The applicant is a widow of a veteran who rendered "operational service" as defined in subsections 5B and 6A of the Act, namely, continuous full-time service outside Australia during World War II.

6. Mr Harris rendered operational service as he served with the Australian Army from 21 June 1941 to 13 November 1935, including service outside Australia in New Guinea.

7. The veteran was born on 6 February 1915 and died on 16 May 1998 aged 83 years. The cause of the veteran's death is recorded (at T4/17) as:

"1 (a) Dehyrdration, possible septicaemia and decubitus ulcers (1 week)

(b) Dementia (3 years)

2. Fracture left hip (November 1997)"

8. At the time of his death the veteran had no service-related disabilities. His non-service-related disabilities were:

§ Lumbar Spondylosis

§ Chronic Solar Skin Damage

§ Cervical Spondylosis

§ Spondylolisthesis

§ Chronic Solar Skin Damage

§ Death

9. The applicant has raised the following hypothesis:

§ The veteran developed a drinking habit because of his war-service.

§ As a result of the veteran's drinking habit and his regular consumption of alcohol, at an average level of 250g/week or more, the veteran suffered a cerebrovascular accident which led to the veteran suffering from dementia, this being the underlying cause of the veteran's death.

LEGISLATIVE SCHEME

10. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of section 8 provides:

"(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;

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or

(e) the injury or disease from which the veteran died:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

but not otherwise."

11. Section 120 describes the relevant 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.

...

(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.

(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.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(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."

12. Other relevant provisions of the Act in respect of the claim are as follows:

"119 Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application; ...

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

13. Section 120A provides that the reasonableness of hypothesis is to be assessed by the reference to the relevant Statement of Principles (SoP):

"(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; ...

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(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.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

14. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.

15. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.

16. The Act provides that a hypothesis is not reasonable for the purpose of subsection 120(3) unless the SoP upholds the hypothesis.

17. There is no disagreement between the parties and the Tribunal is satisfied that the relevant SoP with respect to cerebrovascular accident is Instrument No 52 of 1999. The SoP relevantly provides:

"Kind of injury, disease or death

2. (a) ...

(b) For the purposes of this Statement of Principles, `cerebrovascular accident' means cerebral ischaemia or intracerebral haemorrhage, attracting ICD-9-CM code 431, 433.01, 433.11, 433.21, 433.31, 433.81, 433.91, 434.01, 434.11, 434.91, 435, 436, 437.1 or 674.0.

Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cerebrovascular accident and death from cerebrovascular accident can be related to relevant service rendered by veterans, member of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

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.

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are: ...

(e) regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; or

...

Other definitions

8. For the purposes of this Statement of Principles: ...

`alcohol (contained within alcoholic drinks)' is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink; ...

`cerebral ischaemic' means a reduction or interruption of blood supply to an area of the brain which usually presents as a transient ischaemic attack (TIA) or stroke; ..."

APPLICANT'S EVIDENCE

18. In her written statements (Exhibits A1 and A2), the applicant stated that she was born on 16 September 1918 and first met Richard Harris in 1939; and that they were married on 29 March 1941. She said her husband did not drink before the war. However, on his return from the war he drank regularly and she believed he learnt how to drink in the Army, he having told her they used to make "home brew" and that beer was available in the rations and from American soldiers.

19. She stated that her husband had been involved in casualty clearance and treatment of casualties as a stretcher-bearer, hospital orderly and ward master attached to a mobile hospital. She said that her husband did not talk to her about the war. However, in later life he became obsessed with the war and it was all he could talk about. She stated that, from what her husband had told her, he faced a lot of stress, tension and danger in New Guinea and that he drank to get through it and later, on return, drank to deal with the memory of his stressful service, particularly after he retired in 1980 and started to dwell on his war-time experiences.

20. It was the applicant's evidence that her husband had told her about some of his colleagues in New Guinea "cracking up" and "going mad" including a person sharing his tent threatening him with his gun.

21. Mrs Harris also stated that her husband had significant and painful back problems after his return from service and these problems continued throughout his life. She said that in later years her husband had a lot of blackouts and that, in the last five years of his life, he could not really be left alone. She could not recall ever being told that her husband had had a stroke. However, she knew he had a number of falls.

22. With respect to the veteran's drinking habit, the applicant, in her oral evidence, said that when her husband came back from the war he would drink two glasses of beer and a glass of wine with dinner, and that this level of consumption was curtailed because of limited money when they built their own house in 1946-47 and when their children were growing up and going to school. The applicant said that they had a son (deceased 18 years ago) who was born in 1948 and a daughter born on 9 November 1952. It was the applicant's evidence that her husband only went "down to the pub" on special occasions and mainly drank at home after work, but not if he were on the late shift. She described his work as that of a tram conductor, later supervisor, and that he would work late shifts on a week about basis.

23. The applicant said that her husband increased his drinking in the mid-1950s to four to six drinks per day, including beer and a large whisky. She said she did not know why he increased his consumption at this time and that she would ask him to stop, to no avail. She said that the worse her husband's back pain got the more he drank and that after he retired in 1980, and their son tragically died soon after this (of bone cancer leaving four little children), her husband increased his drinking considerably, the last ten years being particularly difficult. She also said that in the last seven or eight years of his life her husband's war memories became very strong to the exclusion of other memories. She described her husband after retirement as very morose, with no interest in hobbies or anything else, reclusive and no longer the person she knew, and having no conversation with her except to argue with her or criticise her.

24. Janette Harris, the applicant's daughter, in her written statement (Exhibit A3) stated she could remember her father drinking consistently and regularly when she was a child and estimated that he would drink three to five drinks daily, sometimes more particularly when he went out socialising. She said as he got older he drank more and this affected him in the later part of his life, her mother being embarrassed when they went out because he became aggressive and argumentative. She said her father stopped drinking in the last twelve months of his life. She said that as her father got older he was obsessed with the war and would only talk about it, particularly in the last ten years of his life. It was then, she said, that she and her mother learnt about the terrible conditions her father faced during the war.

25. In her oral evidence she said she could not remember the frequency of her father's drinking when she was a child. However, she said it was when she was about twelve that she recalled her father increasing his drinking and starting to drink scotch and wine in addition to beer and sherry. Her evidence reinforced what her mother had said about the difficulties the family faced because of her father's obsession about the war in his later years, because of her brother's death, because of his retirement and because of the progressive deterioration of her father's health in his later years. She told the Tribunal that she had lived at home until she was 26, and then lived nearby and constantly visited her parents. She said that her mother was a teetotaller.

26. The Tribunal notes that the veteran, in submitting a claim in early 1996 and in mid-1997 for painful back skin cancers (Exhibit A5), stated that his duties in New Guinea included stretcher bearing, lifting of patients, assisting sick and wounded as part of a medical team in a casualty clearing station.

MEDICAL EVIDENCE

27. Dr Love, Physician, provided a written report, dated 28 March 2002 (Exhibit A4), and gave oral evidence.

28. Dr Love told the Tribunal that he had never seen the veteran and that he had based his report on the documentary material before him. In his report, Dr Love expressed the opinion that the CT scan of the veteran's brain performed on 20 March 1996 (Exhibit R3) indicated cerebrovascular disease and in so opining relied on the finding of Dr Orr that the scan showed:

"A small amount of low density adjacent to the frontal horn of the right lateral ventricle is in keeping with small vessel disease."

29. In so opining, Dr Love said that on the material available to him there was no indication as to when the above event occurred. However, he noted that the CT report stated:

"4 months ago mild disorientation. Poor short term memory. Worse since then."

30. In answer to the question whether the veteran's dementia can be related to cerebrovascular disease or other vascular disease, rather than being organic or Alzheimer's in nature, Dr Love said:

"Dementia may occur from a number of different causes and two of the most common are Alzheimer's disease in which chemical changes occur within the structure of the brain causing progressive tissue loss. These are not predominantly vascular changes. Alternatively and as commonly, dementia can be due to wide spread occlusion of small arteries within the brain, leading to arteriosclerotic dementia. The only way to confirm the presence of Alzheimer's disease is with microscopic study of brain tissue and this information is not available to us as an autopsy was not performed. However, I would refer you to a report in the material provided by Dr Glenda Powell who was the Director of Aged and Extended are at Greenslopes Private Hospital on 29 March 1996. Dr Powell had performed an extensive examination and assessment of Mr Harris. I note in her report she makes the following statement `He does not fulfil the criteria for Alzheimer's disease and only time will tell'.. This is as close as we can go to diagnosing the presence or absence of Alzheimer's disease. I note the medical opinion provided by Dr Ian Smith for the Department of Veterans' Affairs. Dr Smith's report says as follows `After discussion with the local medical officer, it is apparent that the underlying cause of death was Alzheimer's disease'. I really do not think that Dr Smith is in a position to make a confident diagnosis of Alzheimer's disease on that basis. The term Alzheimer's disease is commonly used in the presence of dementia due to any cause and it is just not possible to diagnose Alzheimer's disease in life without very specific medical testing which Mr Harris did not have; or alternatively after death with an autopsy study."

31. In his oral evidence Dr Love reinforced his opinion that Alzheimer's disease and athrosclerotic brain disease, while being two different conditions, often overlap and are not mutually exclusive. He stated that Alzheimer's disease, being a degenerative process with progressively worsening chemical change, was usually a gradually developing process, whereas cerebrovascular disease was usually episodic, seen as a visible stroke or a series of small events where there might be multiple small lesions.

32. Dr Love placed considerable emphasis on the CT scan of the veteran's brain taken in 1996 and referred to above.

33. Based on this report he opined that while there was no evidence of haemorrhage and the area affected was small, there was evidence of closure of arteries in the vein and that as a result it could be said that the veteran suffered from cerebral ischaemia within the meaning of that term as defined in the relevant SoP.

34. Dr Love confirmed that on the material before him he could not offer an opinion as to whether the veteran suffered from Alzheimer's disease and in so doing highlighted the need for clinical examination and a clear history for any proper diagnosis and, furthermore, he highlighted the difficulty in correlating clinical symptoms with x-ray material.

35. Dr Love was taken to the report of the CT scan of the veteran's lumbosacral spine taken in 1989 (Exhibit A5) where it was reported:

"Moderate atheroma of the abdominal aorta is noted."

36. Dr Love said this was an incidental finding. However, it could be related to the veteran's brain disease, arterial disease throughout the body being consistent with adverse effects on arteries in the brain. It was Dr Love's evidence that drinking alcohol higher than the recommended daily intake of three or four drinks could be a contributing factor to the development of cerebrovascular disease.

37. In cross-examination Dr Love agreed that on the material available to him there was insufficient evidence to show a "step-like" deterioration of the veteran's condition. However, he said that a "step-like" deterioration was not always apparent with cerebrovascular disease.

38. When asked to comment on Dr Powell's opinion that the veteran, at the time of his death, was suffering from Alzheimer's disease, Dr Love expressed the view that it was quite possible to have combined Alzheimer's disease and cerebrovascular disease and that cerebrovascular disease, in this case, could not be excluded particularly where there is vascular disease elsewhere. However, Dr Love agreed that, on balance, Alzheimer's disease was probably the predominant condition.

39. Dr G Powell, Consultant in Geriatric Medicine and Rehabilitation, provided a written report dated 29 March 1996 (Exhibit R2), a written report dated 3 July 2002 (Exhibit R1) and gave oral evidence.

40. Dr Powell first saw the veteran on 20 March 1996 and again on 27 March 1996 at the Aged and Extended Care Clinic at Greenslopes Private Hospital (on referral from his LMO, Dr Safier who reported progressive dementing process, poor long-term and short-term memory with aggression). In her report about these two consultations, Dr Powell noted that she had arranged for the CT scan (Exhibit R3) and reported that:

"The CT scan shows enlarged ventricles only and no evidence of a small area of infarct or lacune."

41. Furthermore, she opined that the veteran, while suffering from poor memory, "does not fulfil the criteria for Alzheimer's disease and only time will tell". In this report Dr Powell also recorded the veteran as "drinks minimal alcohol" and when asked to explain this remark, after referring to her clinical notes, said that her comment resulted from questions and answers and reactions to those questions, which she put to both the veteran and his wife who was present at the time the questions were put.

42. In her report dated 3 July 2002, Dr Powell notes that she again saw the veteran on 31 March 1998 at Beth Eden Nursing Home (again at the request of his LMO). She reported as follows:

"In the interim he had deteriorated markedly in both mental and physical status and had suffered a fractured left neck of femur on the 1.11.97, which was treated by Dr Fine who inserted a Richard's screw on the 2.11.97. During that hospital admission he was recorded as being incontinent and confused and had been a resident at Beth Eden Aged Persons Home since the 9^th August 1997. When I saw him he had no response to commands, had fixed contractures to both knees and ankles and contracted upper limbs and remained in a foetal position with resulting gross pressure areas. At that stage the major concern was his pain management.

In response to your questions my opinion is:

1. The likely diagnosis of Mr Harris' cerebral condition was that of Alzheimer's disease. The onset of this disease is difficult to determine since it is usually slow and insidious. Although he did not have the classical signs of Alzheimer's disease when assessed in 1996 the CT brain scan showed no evidence of ischaemic lesions and at all times his blood pressure readings were normal.

2. The dementia would have contributed to his death in that he was immobile and unable to follow instructions hence he developed major pressure areas.

3. There was no clinical evidence of cerebro-vascular disease for the reasons listed above.

4. I can find no clinical evidence of alcoholic brain damage and wonder why this was raised since he was stated to be a light drinker on all occasions apart from his wife's statement that his alcohol intake increased after his retirement. I do not believe that his mild to moderate alcohol intake contributed to his Alzheimer's disease."

43. In her oral evidence, Dr Powell confirmed her opinion that the veteran at the time of his death was suffering from Alzheimer's disease and highlighted the absence of symptoms that she would have expected to see if the veteran suffered from vascular dementia, such as raised blood pressure, high cholesterol, central nervous system signs and a step-like progression of little strokes. She said she had not been able to say that the veteran suffered from Alzheimer's disease when she first saw him as he only had short-term memory loss at that time and while she accepted that many cases of dementia were mixed, that was not so, in her opinion, in this case.

44. She said, as indicated in her written reports, that she was of the view that the CT scan did not show that the veteran suffered from cerebrovascular disease and any such suggestion did not fit in with her clinical findings at the time. Likewise, she put no weight on the report of moderate atheroma of the abdominal aorta, this being a not unusual and very common finding of some vascular disease in the aorta.

45. In cross-examination it was put to Dr Powell that Alzheimer's disease and cerebral ischaemia often co-exist and given some evidence of small vessel disease in the brain and moderate atheroma of the aorta, there was a basis for saying that the veteran did suffer from cerebral ischaemia. Dr Powell, while agreeing that this may be the case, clearly was of the opinion, on her clinical evidence, that this was not the case. Furthermore, in cross-examination Dr Powell said she had found no evidence of ill-effects of alcohol on examination of the veteran and this, coupled with the clinical history she took, led her to believe that the veteran was only an occasional drinker.

SUBMISSIONS

46. Ms Brennan, for the applicant, submitted that there was no dispute between the parties that the underlying cause of the veteran's death was dementia. It was the applicant's contention, based on the evidence of Dr Love, that an underlying cause of the veteran's death from dementia was cerebrovascular accident, this leading to his dementia and to his being confined to bed and ultimately his death.

47. That being so, it was submitted that the matter which connected the veteran's death with his operational service, namely cerebrovascular accident, need only be established on the less stringent basis pursuant to subsection 120(1) and subsection 120(3) of the Act. In making this submission, the applicant referred the Tribunal to Re Campbell and Repatriation Commission [2001] AATA 559.

48. Furthermore, it was submitted on the evidence of both Dr Love and Dr Powell that the Tribunal should take into account that cerebrovascular accident and Alzheimer's disease were not mutually exclusive.

49. It was submitted that the evidence before the Tribunal gives rise to an hypothesis which fits the template of the relevant SoP concerning cerebrovascular accident (Instrument No 52 of 1999), namely, factor 5(e):

"regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident;"

and, furthermore, that the veteran's consumption of alcohol was connected to his relevant service as established by the applicant's evidence and the evidence of the applicant's daughter. In so submitting, the applicant contended that the relevant SoP does not require that the veteran be suffering from either alcohol abuse or alcohol dependence.

50. With respect to the veteran's consumption of alcohol and the onset of cerebrovascular accident, it was submitted, on the evidence of Dr Powell, that the onset of cerebrovascular accident occurred in 1995, at which time the veteran had been drinking heavily since he retired in 1980 and at a level well in excess of the requirement in factor 5(e) of the SoP.

51. It was submitted, therefore, that the hypothesis put forward by the applicant was a reasonable hypothesis, was not tenuous and was not disproved beyond a reasonable doubt. In fact, it was contended that the veteran's death was war-caused and that the applicant was entitled to a war widow's pension.

52. Mr Smith, for the respondent, accepted that the underlying cause of the veteran's death was dementia. However, he submitted that the veteran's dementia was not due to cerebrovascular accident, but, on the medical evidence before the Tribunal, was due to Alzheimer's disease, and that that the Tribunal was required to be reasonably satisfied of the cause of death before proceeding to consider whether the veteran's death was war-caused pursuant to subsection 120(1) and subsection 120(3) of the Act. In its consideration of the proper approach and the required standard of proof in considering this aspect of the case, the respondent referred the Tribunal to Benjamin v Repatriation Commission [2001] FCA 1879.

53. Accepting that Alzheimer's disease is the proper diagnosis, it was submitted that the SoP Instrument No 17 of 2001 (Alzheimer's disease) was relevant and that none of the necessary factors contained in that SoP were satisfied.

54. With respect to alcohol consumption, it was submitted that the evidence before the Tribunal was that the veteran never told the family why he drank and it was never suggested that the veteran was an alcoholic or suffering from alcohol abuse or dependence. Rather, the evidence showed that the veteran liked to have a drink, limiting his drinking shortly after the war for financial reasons and increasing his drinking later in life because of his back problems, his son's death and boredom on retirement. Furthermore, it was submitted that as the veteran became older and drank more he brooded more over the war and this was because of his drinking rather than his drinking being a shield against intrusive war-time recollections.

55. It was submitted that in this case there was merely a temporal connection between the veteran's service and his drinking habit such that there was no causal connection to his service.

56. In considering the issue of alcohol consumption, the Tribunal was referred to Repatriation Commission v Lee (1981) 147 CLR 635, Holthouse v Repatriation Commission (1982) 1 RPD 287 at 289, Roncevich v Repatriation Commission (2001) 66 ALD 105 and Bull v Repatriation Commission [2001] FCA 823.

CONSIDERATION

57. It is common ground between the parties that the veteran suffered from dementia and in view of this, and on the material before it, the Tribunal so finds.

58. It is also common ground between the parties, and the Tribunal is so satisfied, that the veteran's death certificate is correct in including dementia of three year's duration as a cause of death.

59. In the first instance a critical issue being contested by the parties is whether the underlying cause of the veteran's dementia is cerebrovascular accident or Alzheimer's disease and whether the determination of this issue should be to the Tribunal's reasonable satisfaction or to the Tribunal's satisfaction beyond a reasonable doubt.

60. In considering this question, the applicant referred the Tribunal to the matter of Re Campbell and Repatriation Commission (supra) where the Tribunal referring to Re Cowie and Repatriation Commission [1999] AATA 334 quoted from that decision as follows:

"98. ...Sub-sections 120(1) and (3) of the VE Act are concerned with establishing a causal connection. In Ferriday [(1996) 69 FCR 52)] the causal connection was between a disease and eligible war service. It followed that the matters being connected (i.e. the disease and the eligible war service) had to be established on the balance of probabilities. The connection between those two matters was subject to the less stringent test specified in sub-sections 120(1) and (3).

99. Applying that principle to the present case, the matters which Mr Logan seeks to connect are Mr Cowie's death (and not his PTSD) with his eligible war service. Both those matters have been established at the very least on the balance of probabilities. It is the connection between those two matters which is to be established on the less stringent basis. The fact that the hypothesis by which it is sought to establish the connection between Mr Cowie's death and his eligible war service relies upon his having suffered PTSD as a result of his eligible war service does not alter our conclusion."

61. The Tribunal then went on to consider the conflicting views of his Honour Justice Wilcox (in Meehan v Repatriation Commission [2001] FCA 597) and his Honour Justice Whitlam in Benjamin v Repatriation Commission [2001] FCA 522 within the context of the application of subsections 120(1), (3) and (4) in determining a claim based on a veteran's incapacity from a war-caused disease.

62. The Tribunal then concluded:

"58. There was some discussion at the hearing as to whether or not Wilcox J's judgement in Meehan is consistent with that of the Full Court in Cooke. That judgement and that of Whitlam J were the subject of further written submissions by Mr Stoner. In this case, it seems to us that we do not need to come to any conclusion on the matter. There are various hypotheses proposed by Mrs Campbell. Each seeks to connect Mr Campbell's death with his eligible war service. Both his death and his eligible war service have, at the very least, been established on the balance of probabilities. It is the connection between those two matters that now concerns us. Based on the reasoning in Cowie, which in turn was based on the principles in Cooke and Ferriday v Repatriation Commission (1996) 69 FCR 521, we consider that the connection between them is to be established on the less stringent basis of the reasonable hypothesis test.

59. Although he did not consider a case in which the claim was based on a veteran's death, this approach would also be consistent with the reasoning of Wilcox J in Meehan.. That follows from the fact that he did not require the particular cause of incapacity from a disease or injury to be satisfied on the balance of probabilities but only that there was such an incapacity from a disease or injury. As ss. 5D(2) provides, a reference to incapacity from a war-caused injury or disease is a reference to the effects, and not to the injury or disease itself. His Honour then turned to the application of the reasonable hypothesis test to establish that the incapacity was from a war-caused injury or war-caused disease. That equates with our finding on the balance of probabilities that Mr Campbell died and then applying the reasonable hypothesis test to determine that his death was war-caused. The claim is simply made on the basis of death. The connection is then made between the veteran's death and his or her eligible war service. A claim based on death was not a matter that Whitlam J was required to address in Benjamin.. Even so, our conclusion is consistent with his judgement in respect of incapacity. His Honour said that it was necessary to determine on the balance of probabilities that the veteran had an incapacity from the injury or disease as claimed. Whether that disease or injury was war-caused was then the subject of ss. 120(1) and (3) and the application of the SoPs. In our case, we must determine on the balance of probabilities that Mr Campbell has died. Whether or not his death was war-caused is the subject of ss. 120(1) and (3)."

63. The Tribunal then went on to consider whether the four hypotheses put forward by the applicant were reasonable.

64. Subsequent to the decisions in Campbell's case and Benjamin's case in the first instance, the Full Federal Court has considered Benjamin's case in its decision dated 21 December 2001 (Benjamin v Repatriation Commission [2001] FCA 1879). In that decision the Court clearly addressed the issue of the application of subsection 120(1), (3) and (4) as follows:

"55. The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.

56. However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s 120(3) is satisfied, without reference to s 120A(3).

57. That is to say, if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the Veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Commission will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of s 120(1)."

65. With respect, the Tribunal is of the view that it must follow what the Full Court has said in Benjamin's case where the Court saw fit to clearly include characterisation of death as well as disease or injury in the application of subsection 120(4). As such, the first task before the Tribunal is to determine, to its reasonable satisfaction, the characterisation of the death of the veteran.

66. The conflicting opinions of Dr Love and Dr Powell have been set out above. Dr Love has based his opinion on the material before him, particularly the CT scan taken in 1996, whereas Dr Powell has based her opinion, not only on the same material considered by Dr Love, but also as a result of clinical observation of the veteran in 1996 and 1998. Both doctors agree that clinical findings are an important (if not essential) part in arriving at a diagnosis in a person's mental state and, in particular, Alzheimer's disease.

67. Dr Powell saw the veteran twice in 1996 at which time she found his cognitive state not sufficiently impaired to justify a diagnosis of Alzheimer's disease. However, she further reviewed the veteran in 1998 at the Beth Eden Nursing Home and at this time she was able to conclude that the veteran suffered Alzheimer's disease. Equally of significance, Dr Powell found no evidence of cerebrovascular disease or alcoholic brain damage. Given the agreement of both doctors of the importance of clinical findings and the fact that Dr Powell was able to observe the veteran on three occasions, the Tribunal prefers her opinion to that of Dr Love. In so doing the Tribunal notes that Dr Love did not exclude the probability of the veteran suffering from Alzheimer's disease when he opined that the veteran suffered from cerebral ischaemia.

68. The Tribunal notes that Dr Smith (T4/16) discussed the veteran's death with his LMO and after so doing opined that it was apparent that the underlying cause of the veteran's death was Alzheimer's disease.

69. After consideration of all of the material before it and the submissions of both parties the Tribunal is reasonably satisfied that the veteran's dementia was Alzheimer's disease and this condition was a significant contributing cause to his death. The Tribunal further is reasonably satisfied that the veteran did not suffer a cerebrovascular accident.

70. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:

"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.

4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

71. Following Deledio's case, the Tribunal is satisfied that the material before it points to an hypothesis that the veteran's death was caused by Alzheimer's disease and that there is in force a relevant SoP, namely, Instrument No 17 of 2001.

72. This SoP sets out the factors that must be present and related to relevant service for Alzheimer's disease as follows:

"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Alzheimer's disease or death from Alzheimer's disease with the circumstances of a person's relevant service are:

(a) suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer's disease; or

(b) inability to obtain appropriate clinical management for Alzheimer's disease."

73. In this case the Tribunal is satisfied that none of the above risk factors are met and therefore the Tribunal is satisfied that the hypothesis outlined above is not a reasonable hypothesis.

74. In view of the Tribunal's finding that the veteran's death was not caused by cerebrovascular accident, it cannot be said that an hypothesis connecting death from cerebrovascular accident with the veteran's relevant service is a reasonable hypothesis, and the Tribunal so finds.

75. In this matter there has been no suggestion put forward by either party that the veteran suffered from alcohol dependence or alcohol abuse and the Tribunal is satisfied, on all of the material before it, that there is no evidence pointing to the veteran so suffering.

76. It follows from the above findings that there is no requirement for the Tribunal to consider further the question of the level and cause of the veteran's consumption of alcohol.

77. The Tribunal is also satisfied, on all of the material before it, that apart from an hypothesis connecting the veteran's Alzheimer's disease to the circumstances of his relevant service, the material does not raise any other hypothesis which should be considered with respect to connecting the veteran's death with his war service.

78. In view of the reasons and conclusions set out above, the Tribunal finds that the death of Richard Harris was not war-caused within the meaning of the Act.

79. The Tribunal affirms the decision under review.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Sarah Oliver

Associate

Date of Hearing 27 March 2003

Date of Decision 17 April 2003

Counsel for the Applicant Ms M Brennan

Solicitor for the Applicant Messrs Gilshenan and Luton

Solicitor for the Respondent Mr M Smith, Departmental Advocate