Ingram and Repatriation Commission [2000] AATA 60 (2 February 2000)

Last Updated: 10 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/171

VETERANS' APPEALS DIVISION )

Re MARGARET DOROTHY INGRAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Dr JB Morley (Member)

Date 2 February 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - widow's pension - whether death was war-caused -- smoking - sun exposure - what was cause of death - medical evidence considered - whether related to eligible war service

Veterans' Entitlements Act 1986 ss.6A, 120

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q99/171

VETERANS' APPEALS DIVISION )

Re: MARGARET DOROTHY INGRAM

Applicant

And: REPATRIATION COMMISSION

Respondent

Tribunal : Miss WJF Purcell (Senior Member)

Date : 7 February 2000

Place : Brisbane

Decision : No. 60/2000

CORRIGENDA [2000] AATA 60

Re Decision No 60/2000 of Senior Member Purcell dated 2 February 2000, please make the following corrections in the reasons for decision:

On page 2, paragraph 2 line 4

Delete "Vietnam Veterans' Association"

Substitute "Veterans' Independent Consultation Group"

In Certification - Solicitor for Applicant

Delete "Vietnam Veterans Association"

Substitute "Veterans' Independent Consultation Group"

In Certification - Counsel for the Respondent

Delete "Mr Stone"

Substitute "Mr Stoner"

REASONS FOR DECISION

2 February 2000 Miss WJF Purcell (Senior Member) Dr JB Morley (Member)

1. This is an application for review of a decision of the Repatriation Commission of 12 May 1994, that the death of the applicant's husband (the veteran) was not war-caused. The decision was affirmed by the Veterans' Review Board (the VRB) on 21 July 1995.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and the exhibits tendered by the parties at the hearing. Mr G Mylne, an advocate for the Vietnam Veterans' Association, represented the applicant, and called Dr Jeal, Director of Radiation Oncology, North Queensland Oncology Service, as a witness. Dr Jeal gave evidence by way of telephone link-up. Mr Stoner represented the respondent (the Commission).

3. The veteran served in the Royal Australian Navy (RAN) from 7 February 1964 to 6 February 1984. He was allotted for duty in the Vietnam operational area, aboard HMAS Vendetta, from 25 May 1966 to 11June 1966 and has eligible war service (which is also operational service) as defined by section 6A of the Veterans' Entitlement Act 1986 (the Act). The veteran's service from 7 December 1972 until his discharge on 6 February 1984 constitutes defence service. In respect of the veteran's operational service, the test is that of reasonable hypothesis in accordance with sub-sections 120(1) and 120(3) of the Act. In respect of the veteran's defence service, the test is that of reasonable satisfaction in accordance with sub-section 120(4) of the Act. Section 120 of the Act, as far as is relevant for the purposes of this review, provides:

"120. 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.

(2) ...

(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."

4. The veteran died on 16 June 1993 at 46 years of age. The cause of death was certified as "respiratory failure (3 weeks)" and "disseminated malignant melanoma (3 months)". The applicant lodged her claim on 19 November 1993. As the claim was lodged prior to 1 June 1994, Repatriation Medical Authority Statements of Principle are not relevant for the purposes of this review. The applicant contends that excessive solar exposure contributed to the veteran's death. On 12 May 1994 the Commission found that there was no medical evidence of any likely primary skin lesion, and the exact cause and site of the primary malignancy was unknown. He was satisfied that there was not a reasonable hypothesis connecting the veteran's death with his Vietnam service, nor, on the balance of probabilities, was the veteran's death defence-caused.

5. On 21 July 1995, the VRB affirmed the Commission's decision. The VRB was satisfied that whilst serving in New Guinea, the veteran suffered sunburn and would appear to satisfy Repatriation Medical Authority Statement of Principles No. 98 of 1995, if it was known he had developed a melanoma, however, the site and cause of the cancer was unknown as no post mortem was held. It considered there was no evidence that the veteran suffered sunburn during his 18 days of operational service, and as Dr Jeal could not identify the veteran's primary cancer site, the VRB was satisfied that the material did not raise a connection between the veteran's death and his relevant service, as required by the Act. The VRB examined also the possibility of carcinoma of the kidney, and carcinoma of the lung, being attributable to the veteran's operational service in May/June 1966. The VRB examined the available evidence and concluded:

* "Smoking is a risk factor in the development of carcinoma of the lung and might possibly be a risk factor in the development of carcinoma of the kidney;

* the drinking of alcohol is not a known risk factor in the development of either carcinoma of the lung or carcinoma of the kidney;

* the veteran commenced to smoke after he joined the Navy in 1964; by 1966 he was an established smoker. It could not be said that his smoking habit was war-caused;

* neither carcinoma of the lung nor carcinoma of the kidney were actually diagnosed, although metastases are clearly stated to have been present in both organs;

* neither of the hypotheses raised are [sic] considered to be reasonable."

6. The applicant has applied to this Tribunal for review of the Commission's decision. She does not rely upon the establishment of a reasonable hypothesis in relation to the veteran's operational service; but maintains that the Tribunal should be reasonably satisfied that the veteran's death was war-caused on any of the following bases:

(a) The veteran's defence-caused smoking caused a malignant neoplasm of the lung and its metastases of which the veteran died.

(b) The veteran's defence-caused solar exposure caused a melanoma which led to the veteran's death.

(c) The veteran's defence-caused smoking caused a primary malignancy in the veteran's right kidney or his lungs, which led to his death.

7. The Commission argues that the veteran's smoking habit was a personal choice which was not causally related to his eligible service, and which he continued after his service ceased. It contends also that the solar exposure relied upon was not related to the veteran's eligible service. On the applicant's statement the exposure occurred in 1967, outside the veteran's period of defence service which commenced on 7 December 1972. In addition, the Tribunal must be reasonably satisfied as to a diagnosis of the veteran's cause of death, and as to the likely site of the primary malignancy, and the Commission submits that the evidence is, at the best, speculative.

8. The applicant did not attend the Hearing, but her lengthy statement dated 15 January 1997 was in evidence [Exhibit R4]. She stated that they met in December 1965 when she was 15 and he was 19; and they were both smoking by 1966, and the veteran was smoking 30 cigarettes per day by March 1966. He smoked more heavily subsequently, and by June 1970, when their son, Anthony, was born, the veteran was smoking 50 to 60 per day; but he and the applicant reduced their smoking to 40 cigarettes per day when Anthony developed asthma in July/August 1970. The applicant states that the veteran continued to smoke cigarettes, and in the late 1970's smoked a pipe, also one packet of pipe tobacco per week, and 30 cigarettes per day. He continued his smoking habit after leaving the Navy in 1984, and was smoking 40 cigarettes per day until his death. We are satisfied, on the evidence, that the veteran's smoking habit was not attributable to his eligible service.

9. The applicant's statement refers to the veteran suffering sunburn in 1967, on Manus Island. They walked about 1 kilometre to the canteen and both suffered burns on their shoulders, backs and arms. The veteran had blisters on his back the next day, and was left with white marks on his shoulders, which were permanent scars. The applicant refers to a further sunburn some 6 months later when the veteran fell asleep in the sun during his lunch break. These occasions of sunburn are clearly outside the veteran's period of eligible service, and we are satisfied that this sun exposure was not defence-caused.

10. We turn to the medical evidence. There was general agreement among the medical experts that the veteran died from some form of malignancy with widespread metastases, with three possible primary sites of origin, viz

lung, notably bronchogenic; or

kidney, perhaps hypernephroma or adenocarcinoma; or

malignant melanoma.

11. We note that, although it was earlier considered that the veteran may have had tuberculosis, this was later discarded as a possible diagnosis by his attending medical practitioners.

12. Those medical experts who opined on the veteran's cause of death were Dr Jeal, his treating oncologist, Professor Kune, Professor Maynard, Dr Yates, and Dr Zwar (in the veteran's Death Certificate). Of these, Dr Jeal and Professors Kune and Maynard have examined in detail all of the medical and pathological data available. From their respective individual approaches their deliberations on the primary site of the veteran's carcinoma, in summary, were based on the following observations:

the histological report on the veteran's renal biopsy shortly before his death;

nature of the spread (metastases) of the carcinoma to the other regions in his body where it had been detected; and

exposure to cancer causing factors, notably his longstanding heavy smoking and alcohol intake, reported exposure to asbestos and prolonged skin solar exposure.

13. Dr Jeal and Professors Kune and Maynard all concluded that bronchogenic carcinoma was the most likely cause, this being consistent with the acknowledged nonspecific malignant findings on the renal biopsy, the pattern of metastases to other organs in the veteran's body (including the large size of the renal tumour), his heavy smoking over the years, as well as possible asbestos exposure. Dr Jeal and Professor Kune also were in agreement that, although less likely, a renal carcinoma was possible on the renal biopsy histological changes, the large size of the cancer in his kidney, as well as the pattern of spread to other body regions, and his heavy smoking. However, Professor Maynard regarded a primary renal carcinoma as unlikely.

14. Drs Yates and Zwar diagnosed disseminated malignant melanoma, but Dr Jeal and Professors Kune and Maynard were less persuaded of this possibility. They made the point that the report of pigmentation in the renal biopsy was only "consistent with" a malignant melanoma diagnosis, but "not pathognomonic" (ie conclusively diagnostic). The making of a more conclusive diagnosis of its nature on the renal biopsy material would have required special histochemical staining of the biopsy tissue, and Dr O'Brien refers to her discussion with the cytologist (unnamed) adducing that there was not sufficient material in the biopsy to allow for this to have been performed. This conclusion accords with Dr Jeal's recollection of his discussion with the reporting pathologist, Dr Malcolm Buchanan, that Dr Buchanon said that these special stains were not performed.

15. Dr Jeal in evidence expressed doubt also about the diagnosis of malignant melanoma, even although he was careful to say that this could not be excluded entirely, because there had been no clinical evidence during the veteran's life for a primary skin melanoma. Professor Kune has made the point that sometimes a primary (presumably cutaneous) malignant melanoma can regress (or disappear) after it had already metastasised. Drs Yates and Zwar do not appear to have gone into any discussion of this clinical and pathological evidence. Dr Jeal and Professor Kune agreed that the veteran's solar exposure could have been sufficient to have caused a cutaneous melanoma.

16. We accept the detailed considerations of the medical and pathological data, and the expert testimony of Dr Jeal, and the written reports of Professors Kune and Maynard, and in weighing up this medical evidence, we are satisfied that the most likely primary site of the veteran's carcinoma was his lung, and, of all three main possibilities, the least likely was a melanoma. We are reasonably satisfied therefore that the primary site of the veteran's carcinoma was his lung.

17. We are satisfied also, that there is sufficient evidence that the veteran's smoking was sufficiently heavy and prolonged to have caused either carcinoma of the lung, or carcinoma of the kidney; and that his solar exposure could have been sufficient to have caused any cutaneous melanoma. We have earlier stated in these reasons however, that we are satisfied on the evidence that neither the veteran's smoking habit nor solar exposure was related to his eligible service. We are reasonably satisfied that the veterans' death was not war-caused, and the applicant's claim cannot succeed.

18. For these reasons the Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member) and Dr JB Morley (Member)

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

Associate

Date/s of Hearing 3 November 1999

Date of Decision 2 February 2000

Counsel for the Applicant Mr Mylne

Solicitor for Applicant Vietnam Veterans' Association

Counsel for the Respondent Mr Stone

Solicitor for the Respondent DVA