Evans and Repatriation Commission [2003] AATA 529 (6 June 2003)

Last Updated: 6 June 2003

DECISION AND REASONS FOR DECISION [2003] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/732

VETERANS' APPEALS DIVISION	)
	Re	KATHLEEN EVANS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr B J McCabe, Member

Date 6 June 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) B J McCabe

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - war-widows' pension - whether death of veteran was caused by his war service - whether Statement of Principles satisfied - whether veteran ceased smoking 10 years before the onset of ischaemic heart disease

Veterans' Entitlements Act 1986

REASONS FOR DECISION

6 June 2003

Mr B J McCabe, Member

INTRODUCTION

1. Mrs Kathleen Evans is the widow of the late William Leslie Evans. Mr Evans, a veteran of World War II, died on 4 April 2000. Mrs Evans says the death was ultimately war-caused within the meaning of s 8 of the Veterans' Entitlements Act 1986.. The respondent disagreed, and the Veterans' Review Board affirmed the decision. The applicant has now appealed to the Tribunal.

THE MATERIAL BEFORE THE TRIBUNAL

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It also heard evidence and received medical reports from Dr Kerry Speed, the late veteran's general practitioner, and Dr Michael Darke. The applicant was represented by Mr Muir, while the respondent was represented by Mr Williams.

THE FACTS

3. The late veteran served in the Royal Australian Air Force between 1 July 1943 and 5 February 1946. He did not serve overseas.

4. Mr Evans started smoking in 1943 and gave up in 1963. He suffered from a range of disabilities that were accepted as being war-caused, including:

§ Infrapatellar bursitis;

§ Neurodermatitis;

§ Bilateral sensor-neural hearing loss;

§ Gastro-oesophageal reflux disease;

§ Peripheral vascular disease; and

§ Impotence.

5. The veteran was receiving a pension at 100% of the general rate in respect of those disabilities at the time of his death. The respondent did not accept liability in respect of a number of other conditions that were claimed by the veteran.

6. The veteran died at his home on 4 April 2000. He was 74 years old. The death certificate was completed by Dr McCarthy. Dr McCarthy practiced in partnership with the veteran's general practitioner, Dr Speed. The death certificate records the causes of death as congestive heart failure (over 10 years), atrial fibrillation (over 10 years) and ischaemic heart disease (over 20 years).

7. There was some dispute over the cause of death. Dr Speed suggested the real cause of death was cardiac syncope, ischaemic heart disease and repeated attacks of atrial fibrillation. There was also some discussion in the evidence of the possibility of auricular fibrillation, although Dr Speed said little turned on the distinction. Dr Darke also questioned the diagnosis. He said it was unlikely the late veteran suffered from those conditions over a long period of time if he was not receiving treatment. Dr Darke noted that he reviewed the file and he had seen the veteran in 1997 before his death. He said there was no evidence of long-standing conditions like those described in the death certificate.

8. I will accept for the purposes of the argument that the late veteran died from heart conditions including ischaemic heart disease, as alleged by the applicant. It will become apparent that the precise identification of the cause of death makes no difference to the outcome of the case.

9. To succeed in her claim, the applicant must link her late husband's heart problems that apparently caused his death with the smoking habit he picked up during the war. Mr Muir, for the applicant, acknowledged it was also necessary for the applicant to establish that the heart conditions emerged within ten years after the veteran ceased smoking in 1963 if the applicant is to satisfy the requirements of the Repatriation Medical Authority's Statement of Principles in relation to ischaemic heart disease (see Instrument No 39 of 1999, factor 5(e)).

10. There is evidence in reports by Dr Speed of some heart problems that were treated after Dr Speed took over the treatment of the late veteran in 1987. He referred in particular, in a letter dated 6 September 2000, to the signs of "early ischaemic heart disease". But that is not enough. It is necessary to establish the problems began earlier.

11. The applicant relied in particular on records of the late veteran's visit to an eminent heart specialist, Dr Landy, in 1958. Dr Landy was no longer available to give evidence. His records - or a portion of them - were available. The veteran consulted Dr Landy after suffering from chest pains. Dr Landy had conducted an ECG and chest x-rays. He concluded there was no evidence of organic heart disease, although there was a reference to an arrhythmia. Dr Darke examined the file and concluded there was no basis to diagnose atrial fibrillation. He said the atrial fibrillation should have shown up if it was there on the ECG or on the stress tests that were conducted in later years. One would have expected to see evidence of more extensive heart disease. But it was not there.

12. Mr Muir suggested to Dr Darke that Dr Landy's investigation was necessarily limited and that had the veteran presented with the same symptoms today, he would have been subjected to a more extensive investigation that might have identified the atrial fibrillation. Dr Darke was not impressed with the argument. He insisted the atrial fibrillation and the associated heart disease should have become apparent if it was there.

13. Dr Speed's evidence was difficult to follow. Dr Darke was a more impressive witness, and he had carefully and objectively reviewed the veteran's file. I prefer his evidence. In those circumstances, it is impossible for me to be satisfied the veteran suffered from ischaemic heart disease, or symptoms attributable to or associated with ischaemic heart disease, in 1973. I accept he may have developed these conditions later, but that does not assist the applicant in her claim.

CONCLUSION

14. The decision of the Veterans' Review Board is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

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

Associate

Dates of Hearing 13 December 2002; and 10 January 2003

Date of Decision 6 June 2003

Solicitor for the Applicant Mr Muir, Solicitor

For the Respondent Mr Williams, Departmental Advocate