Franks and Repatriation Commission [2010] AATA 329 (6 May 2010)

Last Updated: 7 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 329

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3582

VETERANS' APPEALS DIVISION		)
	Re		PAULINE FRANKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President D G Jarvis Mr S Ellis AM, Member

Date 6 May 2010

Place Adelaide

Decision

The decision under review is affirmed.

(Signed)
D G Jarvis
Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS - War widow's pension - eligible defence service - ischaemic heart disease and diabetes mellitus – whether veteran was obese for five years prior to clinical onset of ischaemic heart disease - evidence does not support connection with service - decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 70(5), 70(7), 120(4) and 120B(3)

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144

Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Somerset v Repatriation Commission [2005] FCA 1399

REASONS FOR DECISION

6 May 2010

Deputy President D G Jarvis Mr S Ellis AM, Member

1. The applicant, Pauline Franks, is the widow of the late Terrence Milton Franks deceased who died on 5 August 2005. She has claimed a widow’s pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).
2. The deceased served in the Royal Australian Navy from 25 November 1967 until 24 November 1987. His service included eligible defence service from 7 December 1972 until his discharge in 1987.
3. Mrs Franks claims that the death of the deceased was war-caused because it arose out of, or was attributable to his defence service. She claims that the deceased’s obesity led to the development of diabetes mellitus and ischaemic heart disease, and that the obesity itself was relevantly related to his service. It is common ground that the causes of the deceased’s death included ischaemic heart disease and diabetes mellitus.
4. The Repatriation Commission, after reviewing a number of factors referred to in relevant Statements of Principles (SoPs), decided that the death of the deceased was not related to the deceased’s service. This decision was affirmed by the Veterans’ Review Board (VRB). Mrs Franks has applied to this tribunal for review of the Commission’s decision, as so affirmed.

ISSUES BEFORE THE TRIBUNAL

5. The issues before us are:
   • (a) whether the deceased’s death from diabetes mellitus was relevantly related to his defence service; and
   • (b) whether the deceased’s ischaemic heart disease was relevantly related to his defence service.
6. The deceased’s service also included operational service, from 13 to 28 November 1968, when he was serving on HMAS Sydney. However, it was not contended that the conditions which caused his death were related to this service, and the evidence before us would not support any hypothesis on which such a contention could be based.

BACKGROUND FACTS

7. The following background facts are based on evidence given by Mrs Franks, and on the documentary evidence before us, and are not in dispute.
8. Mrs Franks and the deceased were married in 1969, having met in 1967. The deceased died on 5 August 2005. He had been diagnosed with diabetes mellitus as a result of an episode that occurred on 14 July 1987. He later had a heart attack, on 20 January 1994. There is no evidence before us that he had had any symptoms of heart disease prior to that. On the contrary, Mrs Franks gave evidence that he had had no prior warning of the attack, and initially attributed the pain to gall bladder problems.
9. The deceased was trained as a mechanic during his service with the Navy, and was allotted to the fleet air arm, working on aircraft engines. He served for a continuous period of 21 months on HMAS Melbourne until she was decommissioned in the early 1980’s, but he went home to Nowra on weekends, where he and Mrs Franks lived. As far as Mrs Franks could recall, prior to that he had sea going service, of varying periods from three to five months, on HMAS Melbourne, on six to eight occasions. Apart from that sea going service, his operational service in 1968, and his time prior to the decommissioning of HMAS Melbourne, Mrs Franks and the deceased lived on shore during the deceased’s service with the Navy.
10. The deceased’s weight is referred to in a number of medical records included in the supplementary s 37 documents (exhibit R2). These references were conveniently summarised in extracts prepared by Mr Horan, an advocate who represented Mrs Franks at the hearing before us. According to one such record, the deceased’s weight on 25 November 1967 was 85.5 kilograms (exhibit R2, T19, page 97). By 1975, Mr Franks’ weight had increased to 115.2 kg, and taking into account his height of 177 cm, this resulted in a body mass index (BMI) of 36.78 (exhibit A2). The records of the deceased’s weight include various dates until 8 December 1987, when his weight was 116 kg, and his BMI was 37.03.
11. A report of a Medical Board of Survey dated 15 April 1985 (exhibit R2, T19, pages 112 – 115) contains further information regarding the deceased’s weight. It appears from this document that on enlistment in October 1967 he weighed 210 pounds (or 95.5 kg), but following advice, he lost weight and by 25 November 1967, he weighed 188 pounds (or 85.5 kg) and was deemed fit for entry to the Navy (see exhibit R2, T19, page 113). The report includes the following statement:

“Petty Officer Franks was over the weight limits for his height when he presented at Recruiting Office Adelaide as a 21 year old in 1967. Like many other cases that I have seen, he was able to ‘crash diet’ sufficiently to be enlisted, and presumably promptly regained his weight. It is probable therefore, that apart from this initial period, he has never complied with Naval Physical Standards.”

12. The report goes on to refer to various attempts made by the Navy to assist the deceased to reduce his weight to Naval standards. This is consistent with the evidence given by Mrs Franks that the Navy instructed the deceased to go to Weight Watchers, to undertake exercises at gymnasiums, to go on diets, and to go to a school of nuclear medicine to undergo various tests.
13. Mrs Franks also said that the deceased used to get angry that people in the Navy could require him to undertake these various steps, and he could never get his weight down to what the Navy required. She said that she understood that there was a Naval requirement that sailors had to be able to run a nominated distance within a stipulated time, and he had been able to do this, and so had been able to continue his service. Reference to this matter appears in an undated report of a Medical Board of Survey apparently prepared prior to the then expiry, on 24 November 1976, of the deceased’s engagement. This records that in accordance with a defence instruction, he had “run the required 2.4 Km in 14 minutes 20 seconds” (see exhibit R2, T19, page 101).
14. Mrs Franks further said that the deceased was overweight at the time of his heart attack in January 1994, and had remained overweight ever since his discharge from the Navy. She was confident that his weight did not at any stage reduce to 94 kg (being the weight, taking into account his height, at which his BMI would have been 30).

LEGISLATIVE SCHEME

15. Provision is made in Part IV of the VE Act for pensions for members of the Defence Force or of a peacekeeping force (and their dependants) who rendered continuous full-time service as a member of the Defence Force on or after 7 December 1972 and before 7 April 1994.
16. Section 70(1) of the VE Act provides in effect relevantly that where a member of the Defence Force is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with the Act.
17. Section 70(5) provides for a number of circumstances in which the death, injury or disease of a veteran is taken to be defence-caused. Section 70(5)(a) is the only circumstance referred to in s 70(5) that is relevant to the present proceedings. It provides in effect that a disease contracted by a member of the Defence Force is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. There is a wider test of causation in s 70(7). This provides in effect that where, in the opinion of the Commission, the incapacity of a member of the forces was due to a disease that would not have been contracted but for the member having rendered defence service, the incapacity shall be deemed to have arisen out of that disease, and the disease is deemed to be a defence-caused disease contracted by the member.
18. The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that is, on the balance of probabilities. This follows from s 120(4), which provides in effect that the Commission (or this tribunal, which stands in the shoes of the Commission when determining applications for review) shall decide the matter to its reasonable satisfaction. Section 120(6) provides in effect that nothing in s 120 or in any other provision of the VE Act is to be taken to impose upon a claimant or applicant for a pension “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
19. Section 120(4) is expressed to be affected by s 120B. Section 120B(1) provides that that section applies relevantly to a claim made under Part IV of the Act that relates to defence service rendered by a veteran. Section 120B(3) provides relevantly in effect that in applying s 120(4), the Commission (or, once again, this tribunal standing in the shoes of the Commission) is to be reasonably satisfied that a disease contracted by a person was defence-caused only if:

“(a) the material before the Commission raises a connection between the ... disease ... of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the ... disease ... of the person is, on the balance of probabilities, connected with that service.”

20. Section 120B(4) provides relevantly in effect that s 120B(3) does not apply in relation to a claim in respect of the incapacity from a disease of a person if the Repatriation Medical Authority (RMA) has neither determined an SoP under s 196B(3), nor declared that it does not propose to make such a SoP in respect of the relevant disease. This section does not apply to the present proceedings.
21. Part XIA of the VE Act provides for the establishment of the RMA and the making of SoPs. Section 196B(3) provides relevantly in effect that if the RMA is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of disease can be related to defence service rendered by members of the Forces, the RMA must determine a SoP in respect of that kind of disease setting out the factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, a disease of that kind is connected with the circumstances of that service. There is no statutory definition of the concept of an injury, disease or death being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in s 196B(14). This provides relevantly in effect that a factor causing, or contributing to, a disease is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it “arose out of or was attributable to that service”, or the disease would not have occurred but for the rendering of that service by the person, or but for changes in his or her environment consequent upon having rendered that service.
22. Section 180A(3) enables the Commission, in circumstances where the RMA has not made a SoP in respect of a particular kind of disease, to make a determination in writing with respect to a particular class of members of the Forces in respect of (relevantly) defence service, setting out factors that must exist and be related to service before it can be said, on the balance of probabilities, that a disease is connected with the circumstances of that service. There is no suggestion that any determination has been made under s 180A that is relevant to the conditions that form the basis of Mrs Franks’ claim in the present proceedings.

RELEVANT STATEMENTS OF PRINCIPLES

23. The RMA has made SoPs in respect of ischaemic heart disease and diabetes mellitus. The claim for widow’s pension which gave rise to the within proceedings was lodged with the Commission on 30 July 2008. The SoPs that are relevant to her claim are as follows:
    • (a) Instrument No. 90 of 2007, being the Statement of Principles concerning ischaemic heart disease, as amended by Instrument No. 44 of 2009 (IHD SoP); and
    • (b) Instrument No. 12 of 2004, being the Statement of Principles concerning diabetes mellitus, as amended by Instrument No. 10 of 2008 (Diabetes SoP).

CONSIDERATION

24. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, at 358. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18], as follows:

“I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review ... yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”

25. The issues to be determined in claims for pension for injuries or diseases relating to defence service were referred to in Somerset v Repatriation Commission [2005] FCA 1399. In that case the Federal Court dismissed an appeal from a decision of this tribunal relating to a claim by the widow of a veteran for an incapacity pension for non-operational war service. In the course of his decision Greenwood J analysed the provisions of the VE Act to which we have referred above that deal with the issue of whether there is a connection between a veteran’s disability and the circumstances of his or her service. His Honour recounted at [28] that the tribunal had determined that where there is a SoP, the tribunal must:

“... first determine whether to its reasonable satisfaction the material put before it raises a connection between the [applicant’s] disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service.”

He decided that the tribunal’s approach was legally correct.

26. Under s 120B(3) of the VE Act, the tribunal is to be reasonably satisfied that the asserted disease was defence caused only if both of the statutory conditions referred to by Greenwood J apply. We consider that it does not matter which of the two conditions is considered first, and if one of the conditions is not met, then it is not necessary to consider the other condition.
27. Section 120B(3) refers to material raising a “connection” between the asserted condition and the relevant service. In Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 the High Court of Australia considered a claim by a veteran for an injury suffered during his eligible defence service, and decided that the question to be determined was whether the injury arose out of or was attributable to the veteran’s defence service, that being the question posed by s 70(5) of the VE Act. The court pointed out that the connection must be a causal and not merely a temporal one. In their joint judgment, McHugh, Gummow, Callinan and Heydon JJ said, at [27]:

“The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a casual connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”

28. Another “connection” which we think should also be considered is that contemplated by the “but for” test in s 70(7), that is, that the asserted condition would not have occurred but for the veteran’s defence service.

Was the ischaemic heart disease connected with the deceased’s defence service?

29. Clause 6 of the SoP concerning ischaemic heart disease lists a number of factors that must exist before it can be said that, on the balance of probabilities, that disease, or death from that disease, is connected with the circumstances of a person’s service.
30. The first factor that is potentially relevant in the present matter is factor 6(b), namely having diabetes mellitus before the clinical onset of ischaemic heart disease. The condition of diabetes mellitus is itself the subject of a SoP. In those circumstances, it is necessary to consider whether the condition of diabetes mellitus is connected with the circumstances of the deceased’s service by reference to the SoP in respect of diabetes mellitus: see clause 8 of the IHD SoP, and McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144. We shall consider the application of the Diabetes SoP below, in order to determine whether factor 6(b) of the IHD SoP is satisfied in this case.
31. The next factor in the IHD SoP that is relevant in the present proceedings is factor 6(c), namely “being obese for at least five years within the 15 years before the clinical onset of ischaemic heart disease”. The expression “being obese” is in turn defined in clause 9 of the IHD SoP as follows:

“‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres”.

32. We think that on the proper construction of factor 6(c), the expression “for at least five years” should be interpreted as meaning for a period of at least five years, and that the factor would not be satisfied if the veteran were obese for five years in total within the relevant period of 15 years. If the latter interpretation had been intended, we would have expected that factor 6(c) would have been differently worded, so as to refer, for example, to being obese for at least five of the 15 years before the clinical onset of ischaemic heart disease. We accordingly conclude that the factor will not be satisfied unless there is a continuous period of five years of obesity within the 15 years before the clinical onset of the disease.
33. The summary showing the deceased’s weight and BMI (exhibit A2) is not a continuous record of his weight, but it summarises the only written records before us. Neither the summary nor those records reveal that the deceased had a BMI of more than 30 for any period of at least five years during the period covered by the summary, namely 25 November 1967 to 8 December 1987.
34. Mr Horan submitted on behalf of Mrs Franks that as appears from exhibit A2, the deceased’s weight increased by approximately 30 kg over the period from November 1967 until May 1975, and that this was an average of approximately 4 kg per annum. On that basis, he contended that the deceased’s weight would have reached in excess of 94 kg (thus producing a BMI in excess of 30) by at least November 1970, and that according to the records summarised in exhibit A2, the deceased’s BMI continued in excess of 30 until at least 26 February 1976, and the requirement in factor 6(c) of the IHD SoP for obesity to exist for at least five years before the clinical onset of IHD was satisfied. We do not accept this submission. Whilst Mrs Franks gave general evidence that the deceased’s weight increased steadily over the years after she first met him, we do not regard this as sufficient to satisfy us that the deceased’s weight increased by regular steps of four kg per annum, or that it did not fluctuate in the period from November 1967 until May 1975. We cannot assume or infer these matters in the absence of contemporaneous records. In fact the records before us suggest that during his time in the Navy, the deceased had a history of losing some weight followed by gradual weight gain.
35. We note that on 8 December 1987, the deceased’s weight was recorded to have been 116 kg, and that is substantially more than the weight of 94 kg at which his BMI would have been 30. As mentioned in paragraph 14 above, Mrs Franks said that she was confident that the deceased’s weight did not at any stage reduce to 94 kg during the period from his discharge from the Navy in 1987 until he suffered his heart attack in January 1994. This constitutes some evidence that he was obese for at least five years within the 15 years prior to the clinical onset of ischaemic heart disease. The facts that first, he was so significantly over the critical weight of 94 kg when he was discharged in 1987, and second, that after his discharge he was no longer subject to the Navy’s instructions to take steps to reduce his weight, go some way towards satisfying us on the balance of probabilities that factor 6(c) is met in this case.
36. However, under s 120B(3)(a), the material before us must raise a connection between the disease and the deceased’s service. This is also required by clause 5 of the SoP.
37. The report of the Medical Board of Survey dated 15 April 1985, to which we referred above, refers to the possible causes of the deceased’s obesity. After reciting the deceased’s steady weight gain, the report states:

“Petty Officer Franks has been questioned in detail about his dietary and exercise habits. If accurate, there should be no weight gain, however one must assume that either he is taking in more kilojoules than he is aware of, or he is exercising insufficiently (or both). The alternative explanation that he has a lower than average metabolic rate is unlikely and is not capable of being measured readily. There is no clinical evidence of metabolic or endocrine disease. There is no physical reason that would cause him any restriction in his ability to exercise.” (exhibit R2, T19, page 114)

38. Mrs Franks gave evidence that from her observations, the deceased was not a big eater. She also said that he was not a sportsman, although he did increase the amount of his exercise as instructed by the Navy. She said that her understanding of the outcome of tests conducted by the School of Nuclear Medicine was that her husband did not “burn energy” as much as a normal person, and his food lasted twice as long as that of a normal person.
39. This evidence does not suggest that the deceased’s obesity was connected with his defence service. On the contrary, there is evidence that the deceased was obese before he enlisted for service, and had to lose weight in order to enlist, and after that the Navy made significant attempts to assist him to lose weight. Whilst he was provided with meals by the Navy during his periods at sea and whilst the Melbourne was being decommissioned, there were also lengthy periods when he was not serving on ships or being provided with meals by the Navy. In any event, there is no evidence that food provided by the Navy led to his obesity. We are not reasonably satisfied on the material before us that the deceased’s obesity arose out of or was attributable to his defence service, or that it would not have occurred but for his defence service.

Was the deceased’s diabetes mellitus connected with his defence service?

40. The only factor in the Diabetes SoP that is potentially relevant in the present proceedings is factor 5(b). This refers to “being obese for a period of at least 10 years before the clinical onset of diabetes mellitus”. As mentioned above, the date of clinical onset of the deceased’s diabetes mellitus was 14 July 1987. The expression “being obese” is defined in clause 8 of the Diabetes SoP in the same terms as in the IHD SoP.
41. There is no evidence before us that the deceased was obese for a period of at least 10 years before 14 July 1987.
42. Further, for the reasons referred to above, we are not reasonably satisfied on the material before us that his obesity arose out of or was attributable to his defence service, or that it would not have occurred but for his defence service. The Diabetes SoP does not therefore uphold the contention that the deceased’s diabetes mellitus was connected with his service, and it follows that factor 6(b) of the IHD SoP is not satisfied in the present case. In addition, there is no evidence before us that there was a connection between that condition and the deceased’s service, as required by s 120B(3)(a) of the VE Act.

DECISION

43. The decision under review is affirmed.
    

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President

D G Jarvis and Mr S Ellis AM, Member

(signed)

Associate

Date/s of Hearing 23 April 2010

Date of Decision 6 May 2010

Advocate for the Applicant Mr J G Horan

Advocate for the Respondent Mr A Crowe

Solicitor for the Respondent Department of Veterans’ Affairs