Spitty and Repatriation Commission [2000] AATA 47 (31 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 47

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1396

VETERANS' APPEALS DIVISION )

Re MURIEL SPITTY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date 31 January 2000

Place Melbourne

Decision The decision under review be affirmed.

(Sgd.) J.T.C. Brassil

Member

CATCHWORDS

VETERANS' AFFAIRS - whether death was war caused -- causal link -- whether SoP applies -- reasonable hypothesis

Veterans' Entitlement Act 1986 - section 8, subsections 120(1), 120(3), section 120A

Bushell v Repatriation Commission (1992) 109 ALR 30

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Bey (1997) 149 ALR 721

REASONS FOR DECISION

31 January 2000 Mr J.T.C. Brassil, AM, Member

1. This application is for review of a decision of the Veterans' Review Board on 28 August 1998 which affirmed a decision of the Repatriation Commission on 17 November 1997 that the death of the veteran, Leonard Clive Spitty, was not war caused.

2. The appeal was part-heard on 19 April 1999 and resumed on 23 August 1999. The applicant was self-represented and Mr David Phillips appeared for the respondent at each hearing.

3. The documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence. Several medical reports and other documents were submitted as exhibits.

Facts

4. The veteran, Leonard Clive Spitty, had operational service in the Australian Army from 5 November 1941 to 29 January 1946, including service in Papua New Guinea. The standard of proof is therefore that provided by subsections 120(1), 120(3) and section 120A of the Veterans' Entitlements Act 1986 ("the Act"), which is a "reasonable hypothesis".

5. The veteran was born on 10 April 1922 and died on 19 June 1997. The certified cause of death was Cholangitis, 5 days and Pancreatic Carcinoma, three months. The veteran had accepted as being service related Malaria BT and Seborrhoeic Dermatitis and had Pancreatic Cancer and All Other Malignancies accepted for treatment but not as service related.

Evidence

6. At the initial hearing there was no medical evidence made available but the applicant provided to the Tribunal, before the resumed hearing, medical reports from Dr K Ryan, Osteopath/Homeopath/Natural Therapist dated 19 June 1999, Professor J Zhang, Professional Chinese Medical Services dated 31 May 1999 and Dr Andrea Currie (LMO) of the Kunatjarra Medical Clinic, dated 19 May 1999.

7. Dr Kevin Ryan, a director of the Geelong Natural Healing Centre, said (Exhibit 1) the veteran had consulted him in 1989 in regard to a urinary tract infection (UTI) and left testicle swelling which he treated. He had recurrences of the UTI in 1993 and again in the latter half of 1995. Through the first half of 1996 he had preventative treatment with success. No further treatment was given until the veteran reported diagnosis of terminal cancer in April 1997.

8. Professor Jerry Zhang of Professional Chinese Medical Services reported (Exhibit 3) that the veteran was first seen in April 1997 but he had a past history of malaria, contracted on war service, and recurring UTI. He had been now diagnosed with pancreatic carcinoma and presented with epigastric pain and jaundice and kidney dysfunction. Professor Zhang stated in the view of Chinese medicine he thought the veteran's condition was associated with toxin accumulation, "Liver blood deficiency", "Kidney Qi and Jing deficiency", as well as "Spleen dysfunction of transformation and transportation". He reported that, after treatment, the jaundice disappeared and a liver function test showed improvement. He last saw the veteran on 13 June 1997.

9. The Tribunal also had available the clinical notes and various reports from Dr Andrea Currie who was in recent years his local general practitioner.

Submissions

10. The applicant submitted that her late husband's service in the tropics for 2 years adversely affected his health. There he had suffered the usual tropical complaints, dermatitis, tinea, dysentery, dengue and repeated attacks of malaria. On his return she did notice he used a lot of salt on his food and passed gravel in his urine. He agreed to reduce his salt intake and take barley water to help his kidneys. He had been treated in hospital for 2 weeks by a specialist, Dr Leggett, for bladder problems. He had years of urinary tract infections.

11. When her late husband was diagnosed with terminal cancer she had taken him to Professor Zhang, an expert in Chinese medicine, who was concerned about his kidneys and that they were too weak to handle toxins.

12. Mrs Spitty said that unfortunately the medical practitioners who had treated her husband were now deceased and she could only submit reports from doctors who had recently treated him.

13. She submitted that her husband's kidney problem went back to the excessive heat in the tropics causing him to perspire excessively. The salt intake which he had commenced on war service (he was also taking atebrin) had the effect of masking his malaria. The malaria manifested itself after he returned to civilian life including shivers, shakes, chills and the repeated UTI which affected his liver and his kidneys. She stated that she was not claiming that malaria directly caused her husband's death but that it was linked to his kidney problems which she believed were responsible.

14. She believed that her husband's malaria and his pancreas trouble were both war related. Pancreatic carcinoma was the stated cause and this would also go back to his service in the tropics. She believed from what had been said to her by a doctor that no one knows what causes pancreatic carcinoma so her submission that it was connected to his service could be accepted.

15. She emphasised that she only wanted to be treated as other widows of veterans had been.

16. On behalf of the respondent Mr Phillips submitted that under the Act the Tribunal was obliged to apply the relevant Statement of Principle (SoP). As the veteran had died from pancreatic carcinoma the SoP to be considered was Instrument No 55 of 1997 concerning "Malignant Neoplasm of the Pancreas".

17. The factor (a)(i) requires a smoking history of at least ten pack years but Mr Phillips submitted this cannot be satisfied as the veteran was a non-smoker as stated in his medical service records and in the Smoking Questionnaire completed by the applicant on 12 November 1997 (T 9, page 48)

18. The factor (a)(ii) requires "suffering from diabetes mellitus for at least five

years before the clinical onset of malignant neoplasm of the pancreas". As Dr

Currie sets the diagnosis of diabetes mellitus as 20 May 1995 (T 8, page 47) this

factor is not satisfied.

19. The factor (a)(iii) requires that the veteran suffer "from chronic pancreatitis for at least five years immediately before the clinical onset of malignant neoplasm of the pancreas". Mr Phillips submitted there was no evidence that the veteran had suffered from chronic pancreatitis.

20. The factor (a)(iv) needs the veteran to have been occupationally required to spray or decant DDT for specified periods. Mr Phillips noted that the applicant had stated she considered the DDT matter was "rot" and "nonsense" (T1)

21. Mr Phillips then submitted that factor (b) was not relevant. It refers to "inability to obtain appropriate clinical management for malignant neoplasm of the pancreas" and Mr Phillips stated that the condition was not present until 1997 so the veteran could not have required clinical management during his war service.

22. Turning to the main submission of the applicant Mr Phillips submitted that if malaria was to be considered then the relevant SoP was Instrument No 172 of 1995. In that Instrument it is required that before a "reasonable hypothesis" can be raised there has to be service in an area specified in the attached Schedule before the onset of malaria or inability to obtain appropriate clinical management for malaria. He conceded that Papua New Guinea was on the Schedule.

23. He submitted however that while an hypothesis could be raised that no hypothesis of malaria being linked to the veteran's death had been raised by any of the medical witnesses. He also submitted that even if they had done so that none of the three witnesses could be regarded as "eminent medical practitioners" in the field of expertise relating to the causation of death (Bushell v Repatriation Commission (1997) 109 ALR 30).

24. Mr Phillips submitted that the applicant's hypothesis was purely speculative and not supported by the facts nor the required eminent medical practitioners. He further submitted that in order for an hypothesis to be "reasonable" it must not be based on a "mere possibility" or be too fanciful, incredible, tenuous or speculative (Repatriation Commission v Bey (1997)149 ALR 721 and East v Repatriation Commission (1987) 16 FCR 517).

Consideration of the Issues

25. The service rendered by the late veteran provides that the lesser standard of proof will apply, the issue of whether the veteran's death was war caused can be decided on the basis of a "reasonable hypothesis" being presented that would relate his death to his war service.

26. In considering a "reasonable hypothesis" this Tribunal is bound by the decision in Bushell that the hypothesis be put forward by eminent medical practitioners in the field of expertise. Even if they had raised an hypothesis the problem the Tribunal has is that the three professionals whose written evidence was available could not be so characterised and, in any case, none of them put forward any hypothesis of a causal link between his war service and the cause of death of the veteran.

27. The only hypothesis put forward was by the applicant herself and without the support of eminent medical practitioners the Tribunal can only regard the applicant's submission as a "mere possibility" which cannot be persuasive in determining that there is a causal link between malaria contracted during war service and the veteran's death.

28. While the Tribunal can be sympathetic to the needs of the applicant its decision must be made according to the law which, in this matter, would require a "reasonable hypothesis". The submissions of the applicant do not meet the requirements for such an hypothesis and the appeal must fail.

Decision

29. The Tribunal will affirm the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.T.C. Brassil, AM, Member

Signed: Judith Holt, Associate

Dates of Hearing 19 April and 23 August 1999

Date of Decision 31 January 2000

Applicant Self-represented

Respondent Mr D. Phillips, Advocacy Section,

Department of Veterans' Affairs