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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Cause of death - whether Jakob-Creutzfeldt disease
Re M M Hastings and Repatriation Commission
Purcell, Kennedy and Way
V96/241
10 November 1998
[Full Text]
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Mrs Hastings applied to the Tribunal for review of the Repatriation Commission's decision that her late husband's death was not war-caused. Mr Hastings died in 1993 at the age of 76 years. As he rendered operational service, the claim was required to be decided in terms of the "reasonable hypothesis" standard of proof in ss 120(1) and (3) of the VE Act.
Hypothesis
The cause of death was certified as being "chest infection due to Alzheimer's disease" but Mrs Hastings claimed that her late husband died from Jakob-Creutzfeldt Disease (JCD), also known as Creutzfeldt-Jakob Disease. She contended that Factor 1(c) of the Statement of Principles relating to JCD was satisfied, in that the veteran suffered from JCD; he died from chest infection due to JCD, and had undergone surgery to the nervous system, namely the retina of his right eye (in July 1944) before the onset of JCD.
Factor 1(c) of the Statement of Principles No 63 of 1995 relates to:
"1(c) undergoing surgery to the central nervous system or cornea before the clinical onset of Jakob-Creutzfeld disease;"
Mrs Hastings conceded that if the veteran died from Alzheimer's disease, the applicable SoP would not be satisfied.
The Commission submitted that Factor 1(c) was not satisfied, in that the evidence did not support a diagnosis of JCD, as opposed to Alzheimer's disease, which was the certified cause of death.
Medical opinions
Dr Bennett, physician and consultant in infectious diseases, stated that it was impossible to distinguish between Alzheimer's disease and JCD with certainty without microscopic examination of brain tissue. He stated that Alzheimer's disease is the most common cause of dementia and a degenerative disease of the nervous system. JCD is a comparatively rare disease which occurs at an annual rate of about one case per million people. He described it as an "indisputable fact" that Mr Hastings may have had JCD and not Alzheimer's disease and the probability could not be denied. He agreed that it would be speculative to make a diagnosis of JCD in the veteran's case, as it would be speculative to make a diagnosis of Alzheimer's disease. He said that the veteran's clinical presentation made it just as likely that he suffered from JCD as from Alzheimer's disease.
Dr Bennett put forward the following hypothesis connecting war service with the veteran's death:
a. Mr Hastings served in New Guinea during World War 2.
b. While in New Guinea, on 18 August 1943, when he was instructing in unarmed combat he sustained an injury to his right eye.
c. As a result of this injury retinal detachment of his right eye occurred which was not diagnosed until 25 March 1944.
d. After evacuation to Australia, an operation was performed on his right eye on 4 July 1944, which involved diathermy to the back of his eye-ball.
e. During this operation instruments came in very close proximity to his cornea and to his retina, both of which are structures very close, or in the latter case, part of the central nervous system.
f. It is possible, particularly since the potentially transmissible nature of JCD had not been recognised at that time, that the instruments used on Mr Hastings had been previously used on a known, or unsuspected, patient with JCD. The sterilising/disinfecting techniques used at that time would have been inadequate to eradicate the prion agent from the instruments used.
g. contamination of surgical instruments with prion agent then provided a recognised mechanism by which the agent was deposited on the cornea or close to, or on, the central nervous system at the retina/optic nerve. The agent then migrated to the nearby brain, by a mechanism not yet elucidated but possibly along nerves.
Dr Sandstrom, neurologist agreed that it was not possible to make a firm diagnosis without a cerebral biopsy or examination of cerebral tissue. However, the clinical course of the disease in this case over some five years was more typical of Alzheimer's disease than JCD which is rapidly progressive and death normally occurs within 6 to 8 months.
Tribunal's conclusion
The Tribunal accepted Dr Sandstrom's opinion that the late veteran had suffered from Alzheimer's disease. The Tribunal concluded:
"In Dr Bennett's view, a diagnosis of JCD was a possibility, but he was not able to take it higher than that. He acknowledged that there was no way a definitive diagnosis of JCD could be reached. Dr Sandstrom said, on the basis of the information provided, he would not have considered the possibility of JCD high enough to warrant consideration of brain biopsy. In his opinion, the veteran was suffering from Alzheimer's disease. On all the evidence we cannot be reasonably satisfied that the veteran had JCD. In these circumstances Factor 1(c) of the Statement of Principles is not satisfied and it cannot be said that a reasonable hypothesis has been raised, connecting the veteran's death with the circumstances of his relevant service." (emphasis added)
Formal decision
The Tribunal affirmed the decision that the veteran's death was not war-caused.
[Ed: In stating that it was not "reasonably satisfied" that the veteran had JCD, the Tribunal followed the Federal Court in Ferriday rather than Preston as to the standard of proof to be applied and was consistent with the view subsequently taken by the Full Court in Cooke which is reported in this edition.]