Warren and Repatriation Commission [2002] AATA 64 (1 February 2002)

Last Updated: 6 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/265

VETERANS' APPEALS DIVISION

Re: NEIL JOHN WARREN

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 1 February 2002

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) Graham Friedman

Member

VETERANS' AFFAIRS - veterans' entitlements - malignant melanoma of the skin - sunburn -whether war-caused

Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A(3)

Benjamin v Repatriation Commission [2001] FCA 1879

Meehan v Repatriation Commission (2001) 64 ALD 366

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton (2001) 33 AAR 370

REASONS FOR DECISION

1 February 2002 G.D. Friedman, Member

1. This is an application by Neil John Warren (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 11 January 2001. The VRB affirmed a decision of a delegate of the respondent dated 30 May 2000 that malignant melanoma of the skin was not war-caused.

2. At the hearing of this matter on 25 January 2002 Mr P. Liefman, solicitor, represented the applicant and Ms J. McCulloch, Department of Veterans' Affairs advocate, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with one exhibit lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1).

BACKGROUND

4. The applicant was born on 7 January 1947. He served with the Australian Army from 4 October 1967 to 4 October 1969 as a national serviceman. For the purposes of s9 of the Veterans' Entitlements Act 1986 (the Act) the applicant rendered operational service from 18 February 1968 to 30 September 1969 in the Republic of South Vietnam (Vietnam).

5. On 19 April 2000 the applicant lodged an application with the respondent for disability pension for incapacity from hearing problems and malignant melanoma. On 30 May 2000 a delegate of the respondent diagnosed the hearing problems as bilateral sensorineural hearing loss and bilateral tinnitus, and accepted the claim. The respondent refused the claim for malignant melanoma of the skin on the grounds that the condition was not war-caused. On 11 January 2001 the VRB affirmed the decision of the delegate. On 14 March 2001 the applicant sought review by the Tribunal of the decision of the VRB.

EVIDENCE

6. The applicant told the Tribunal that he served with 85 Transport Unit as a cook at the Australian Base in Nui Dat, Vietnam. He described the climate in Vietnam as hot and sunny, and said that he spent considerable periods outside when preparing meals, and wore a shirt only when serving meals and in the evenings. He said that he did not use sunscreen and after some five months in Vietnam he suffered from sunburn on 3 or 4 occasions, particularly on his back, shoulders and arms. He stated that the sunburn was very painful and that the pain lasted up to three days.

7. In a written statement dated 22 January 2002 the applicant said that on each occasion that he suffered sunburn the skin mainly on the back but also [on the] front of my upper body was pink going on to red. He added that:

. . .

The sunburn was accompanied by blistering and peeling in the sunburnt areas.

They were like steam burns with the skin becoming puffed up blister[s] filled with liquid.

. . . the sunburn lasted at least a day (24 hours) and could have been longer.

8. The applicant stated that he did not report the sunburn to medical personnel because under army regulations sunburn was considered to be a self-inflicted wound, and he risked being charged with an offence. Under cross-examination he agreed that he told the VRB that on the three or four occasions he suffered from sunburn the pinkness lasted 24 hours or it could have been a bit longer. The applicant agreed further that when lodging a claim for pension on 17 May 2000 he answered No to the question: Has the veteran ever been sunburnt on service? He told the Tribunal that although he disclosed the sunburn, he ticked the No box because he had not reported the matter to medical personnel and there was no medical record of sunburn. He also agreed that he had not mentioned blisters when he appeared before the VRB or when he applied for pension, and explained that he was not questioned about it at the VRB hearing.

9. In a written report dated 4 January 2001 Mr B. Archer, surgeon, stated that on 4 April 2000 he removed a malignant melanoma from the applicant's lower back. Mr Archer said that:

. . .

Prolonged sun exposure and in particular blistering sunburns are certainly a major contributing factor to the development of malignant melanoma. I would therefore support the case that if Neil was exposed to sun without any sunscreens earlier in life such as his service in the Vietnam war then this may certainly be a contributing factor to the development of his melanoma.

CONSIDERATION OF THE ISSUES

10. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.

11. Mr Liefman, on behalf of the applicant, noted that there was no dispute between the parties that the applicant had rendered operational service and had been diagnosed with malignant melanoma of the skin, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that the condition was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

12. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Mr Liefman submitted that the applicable SoPs concerning malignant melanoma of the skin were Nº 97 of 1995 as amended by Nº 189 of 1996, or Nº 39 of 2001.

13. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Mr Liefman submitted that the hypothesis fits within the template and is reasonable. He relied on the statements and oral evidence of the applicant and the medical report from Mr Archer, and referred the Tribunal to factor 5(a) of SoP Nº 39 of 2001:

suffering from sunburn before the clinical onset of malignant melanoma of the skin.

14. In par 8 of the SoP sunburn is defined as:

painful erythema [redness] of the skin of at least 48 hours duration or blistering of the skin, resulting from excessive exposure to sunlight.

Mr Liefman submitted that there was sufficient material before the Tribunal to demonstrate that the applicant suffered painful erythema of at least 48 hours' duration. Mr Liefman stated that alternatively, the Tribunal should accept the statement by the applicant dated 22 January 2002 and the oral evidence that blistering of the skin occurred as a result of excessive exposure to sunlight.

15. The fourth step requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the condition was not war-caused. At this stage the Tribunal is required to make findings on questions of fact. Mr Liefman submitted that there was sufficient material before the Tribunal to find that the relevant condition was war-caused. He said there was no evidence that the applicant suffered from malignant melanoma of the skin before his war service, and that the Tribunal could not be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the condition was not war-caused.

16. Ms McCulloch, on behalf of the respondent, referred to the material concerning the applicant's claim form and submitted that the Tribunal should give little weight to his evidence. She asked the Tribunal to find implausible his assertion that the No box was ticked on advice from the pension officer because there was no medical record of sunburn. She noted the written statement of 22 January 2002 and said that there had been no previous mention of blistering, particularly at the VRB hearing or at any time following the lodgment of the application for review with the Tribunal. Ms McCulloch stated that in his own evidence the applicant had stated that his skin turned pink, not red, and there was no evidence that any erythema had lasted for 48 hours. She submitted that for these reasons the applicant could not satisfy the third step.

17. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

18. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the applicant has suffered from a malignant melanoma of the skin, and that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.

19. In respect of the second step, the Tribunal finds that SoP Nº 97 of 1995 as amended by Nº 189 of 1996, and SoP Nº 39 of 2001 concerning malignant melanoma of the skin, as determined by the Repatriation Medical Authority, are relevant. There was no dispute between the parties that SoP Nº 39 of 2001 is in force and is the appropriate SoP in this matter (see Repatriation Commission v Gorton (2001) 33 AAR 370).

20. In respect of the third step, s120(3) provides that, in applying s120(1), the Tribunal shall be so satisfied if, after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable only if there is an SoP that upholds the hypothesis.

21. The Tribunal accepts the submission by Ms McCulloch that when completing the claim form for pension, the applicant should have provided details of the incidents involving sunburn. The Tribunal finds that he had ample opportunity at the VRB hearing to give details of erythema that lasted at least 48 hours, but did not do so. Similarly the Tribunal does not accept the applicant's statement that at the VRB hearing he made no mention of blistering because he was not asked. The Tribunal notes that the applicant's written statement of 22 January 2002, filed almost eleven months after he lodged his application to the Tribunal for review, contains the first reference to blistering and to his skin going pink and then red during his operational service. The Tribunal also notes that in the final medical report prior to his discharge from the army in 1969 the applicant made no mention of blistering or sunburn.

22. For these reasons the Tribunal does not consider the evidence from the applicant to be persuasive, and finds that erythema was not of 48 hours' duration and that at the relevant time there was no blistering caused by excessive exposure to sunlight. Consequently the Tribunal finds that the applicant was not suffering from sunburn as defined in SoP Nº 39 of 2001, and the Tribunal is not reasonably satisfied that the malignant melanoma of the skin presently suffered by the applicant falls within the SoP that is in force. Therefore the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP. For these reasons the third step is not met. In the circumstances, there is no need for the Tribunal to consider the fourth step.

23. In Benjamin v Repatriation Commission [2001] FCA 1879 the Full Federal Court stated at par 56:

. . . if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all the evidence available to it, whether s 120(3) is satisfied, without reference to s120A(3).

Applying the test set out in Benjamin, having determined that the condition presently suffered by the applicant does not fall within an SoP that is in force, the Tribunal must determine, on all the evidence available to it, whether s120(3) is satisfied, without reference to s120A(3). In applying s120(3) the Tribunal has considered all the material available to it, and for the reasons outlined above, including the credibility of the evidence given by the applicant and the lack of supporting evidence, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition is a war-caused condition for the purposes of s120(1).

DECISION

24. The Tribunal affirms the decision under review.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 25 January 2002

Date of decision: 1 February 2002

Solicitor for applicant: Mr P. Liefman, Peter J. Liefman, Barrister & Solicitor

Solicitor for respondent: Ms J. McCulloch, Advocacy Section, Department of Veterans' Affairs