Trower and Repatriation Commission [2003] AATA 1279 (16 December 2003)

Last Updated: 16 December 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1279

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/43

VETERANS' APPEALS DIVISION	)
	Re	JOYCE TROWER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

The Hon CR Wright QC (Deputy President)

Date 16 December 2003

Place Brisbane

Decision

The decision under review is affirmed.

..................(Sgd).......................

The Hon CR Wright QC

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - war widows' pension - war service - Statements of Principles - hypotheses - connecting war service with veteran's death from non-Hodgkin's lymphoma - whether hypotheses reasonable

Veterans' Entitlements Act 1986, s 120 and s 120A

Re Jenkin and Repatriation Commission (1997) 47 ALD 721

REASONS FOR DECISION

16 December 2003

The Hon CR Wright QC (Deputy President)

1. On 11 November 1999, the Veterans' Review Board (VRB) affirmed a decision of the Repatriation Commission, dated 11 February 1999, in which it was determined that the death of Arthur Trower on 26 December 1998 was not related to his war or defence service in the Australian Army between 1 June 1942 and 11 June 1946.

2. Mr Trower was 74 years of age at the time of his death which was certified to be due to mantle cell lymphoma (2 years).

3. The applicant Joyce Trower is the widow of the deceased and has claimed a war widow's pension on the basis that her late husband's death was war-caused in that it was due to a condition which was contributed to in a material degree or was aggravated by eligible war service.

4. There is no dispute that the deceased's service in the Army was eligible war service within the meaning of the Veterans' Entitlements Act 1986 (the Act). As he served outside Australia the whole of his service constituted "operational service", and accordingly section 120(1) and (3) of the Act apply.

5. Consequently it is obligatory for the determining authority to find that the deceased's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (section 120(1)).

6. The determining authority must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the deceased (section 120(3)).

7. The applicant's claim for pension having been lodged after 1 June 1994, the determining authority is obliged to apply section 120A(3) of the Act which provides that, for the purposes of section 120(3), a hypothesis connecting the death of a person with the circumstances of any particular service rendered by that person is reasonable only if there is in force a Statement of Principle determined under section 196B(2) or (11) or a determination of the Commission under section 180A(2) that upholds the hypothesis.

8. These Statements of Principle (SoPs) are binding on the Commission and review bodies such as the VRB and the AAT. It should be noted, with particular reference to the present claim, that if an applicant fails to satisfy the relevant SoP, it is not permissible to then apply section 120(1) independently of the SoP (Re Jenkin and Repatriation Commission (1997) 47 ALD 721).

9. The relevant Statement of Principles applicable in the present circumstances is SoP No 80 of 1999 (Non-Hodgkin's Lymphoma). The reports of haematologists Dr S Farag (24 February 1999), Dr N Wickham (16 October 2000) and Dr T Frost (20 December 2002) all confirm that Mr Trower's death was caused by a stage IV non-Hodgkin's lymphoma. Dr Wickham determined that such lymphoma was of "mantle cell" origin and the ICD coding referred to in SoP 80 of 1999 para 2(b) includes a lymphoma of this type.

10. The VRB took evidence (inter alia) from Mrs Trower who provided a comprehensive history of her late husband's illness from the time she met him in 1946 until his death.

11. The VRB summarised the effect of Mrs Trower's evidence as follows:

"Mr Trower returned from the war with malaria and developed prostate problems in the early 1990's followed by low grade lymphoma, adult leukaemia involving the spleen and bone marrow, and atrial fibrillation. In the late 1990's he developed non-Hodgkin's mantle cell lymphoma of an extremely aggressive nature and also had an allergic reaction to the antibiotic treatment prescribed for him. After an extended period of illness the veteran unfortunately passed away on 26 December 1998."

12. The VRB concluded its determination of the applicant's application to review the Commission's decision as follows:

"Having reviewed the whole of the material before it, the Board finds that none of the minimum factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veterans' death was war-caused. In these circumstance, the Board is required to affirm the decision under review."

13. The applicant lodged an application for review of the VRB decision with the AAT on 12 January 2000. The basis of the application was stated to be that the VRB failed to consider or place sufficient weight upon evidence presented on behalf of Mrs Trower establishing a link between the death of her late husband and his war or defence service.

14. The application for review came on for hearing before me in Townsville on 10 November 2003. The applicant was unrepresented but was accompanied by a friend, Mr Buckingham. The respondent was represented by Mr John Stoner, a Departmental advocate. Twenty-five documents were received into evidence, consisting principally of medical reports and several comprehensive statements and letters (mainly of a chronological kind pertaining to her husband's health) prepared by Mrs Trower. There were also letters from former service colleagues of the late Mr Trower detailing their shared experiences which were seen as having a potential bearing upon the issues before the Tribunal. After the conclusion of the hearing, by letter dated 14 November 2003, Mrs Trower placed further information before the Tribunal. I have received this into evidence as Exhibit 26 together with the attachment, as there has been no objection by the respondent.

15. Some of the issues raised by Mrs Trower seem to me to be irrelevant to her claim, having regard to the terms of SoP 80 of 1999. There are however some matters which require comment and I think that those comments will best be understood if I set out those provisions of SoP 80 of 1999 in respect of which such comments are applicable:

"Kind of injury, disease or death

2.(a) This Statement of Principles is about non-Hodgkin's lymphoma and death from non-Hodgkin's lymphoma.

(b) For the purposes of this Statement of Principles, "non-Hodgkin's lymphoma" means a malignant neoplastic disease arising from the lymphoid components of the immune system, characterised by the absence of the Reed-Sternberg cells, attracting ICD-10-AM code C82 or a code in the range C83.0 to C83.6 or C83.8, C83.9, C84 or C85. This definition includes non-Hodgkin's lymphoma arising within parenchymal organs and excludes Burkitt's lymphoma, plasma cell malignancy, hairy cell leukemia and chronic lymphoid leukemia.

Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that non-Hodgkin's lymphoma and death from non-Hodgkin's lymphoma can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma with the circumstances of a person's relevant service are:

(a) being infected with Human Immunodeficiency Virus (HIV) before the clinical onset of non-Hodgkin's lymphoma; or

(b) having received a solid organ or bone marrow transplant before the clinical onset of non-Hodgkin's lymphoma; or

(c) having received systemic immunosuppressive drug therapy for the treatment of rheumatoid arthritis, Sjogren's syndrome, dermatitis herpetiformis or chronic glomerulonephritis within the ten years immediately before the clinical onset of non-Hodgkin's lymphoma;

or

(d) spraying or decanting a herbicide containing 2,4-dichlorophenoxyacetic acid (2,4-D) or 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of non-Hodgkin's lymphoma; or

(e) being on land in Vietnam or at sea in Vietnamese waters, for at least 30 days, at least five years before the clinical onset of non-Hodgkin's lymphoma; or

(f) for adult T-cell leukaemia-lymphoma only, being infected with HTLV-1 before the clinical onset of non-Hodgkin's lymphoma; or

(g) for primary non-Hodgkin's lymphoma of the small intestine only, suffering from coeliac disease at the time of the clinical onset of non-Hodgkin's lymphoma; or

(h) for primary B-cell lymphoma of the stomach only, having Helicobacter pylori infection at the time of the clinical onset of non-Hodgkin's lymphoma; or

(j) inability to obtain appropriate clinical management for non-Hodgkin's lymphoma.

Factors that apply only to material contribution or aggravation

6. Paragraph 5(j) applies only to material contribution to, or aggravation of non-Hodgkin's lymphoma where the person's non-Hodgkin's lymphoma was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

...

Other definitions

8. For the purposes of this Statement of Principles: ...

`Helicobacter pylori infection' means an infection of the mucus layer overlying gastric-type epithelium by the bacterium Helicobacter pylori;

...

`systemic immunosuppressive drug therapy' means the therapeutic administration continuously for a period of at least three months of a drug or drugs the primary function of which is suppression of the immune response;..."

16. It will be seen from para 2(b) that "non-Hodgkin's lymphoma" does not by definition include "hairy cell leukemia". If therefore Mr Trower's death were due to leukemia of this type the SoP would not apply. This was suggested to the VRB by Mrs Trower's representative at the VRB hearing but was rejected. I have reached the same conclusion. There was, at one stage, a suggestion of hairy cell leukemia being operative in Mr Trower's condition (see report 13 March 1997 by Dr PD Meagher) but, when Dr Meagher had a sample analysed further, his original suspicions were not confirmed. The evidence of the other haematologists referred to above clearly establishes that the deceased's fatal illness was caused by "non-Hodgkin's Lymphoma". There is no evidence to suggest it was caused by "hairy cell leukemia".

17. It was claimed by Mr Trower, with written support by Mr Mason, that during his war service, her husband, an instrument maker, regularly used highly toxic chemicals and sources of radiation. I understood this to be contended as a likely basis for finding that factor 5(d) relating to inhalation or absorption of 245T herbicides was satisfied. However factor 5(d) is quite specific as to the relevant toxic chemicals which may be involved and there is no evidence that Mr Trower was ever brought into contact with these chemicals. As to the effect of other chemicals on non-Hodgkin's Lymphoma see the report of Dr Frost (Exhibit 6).

18. Mrs Trower also stated that her husband used Chlorambucil and Prednisolone on prescription from Dr Meagher. As to this Dr Anne-Marie Watson states in her report of 6 August 2001:

"Mrs Trower's statement included reports of use of Chlorambucil and Prednisolone as treatment by Dr Meagher. Whilst Prednisolone is used as a immunosuppressive agent as treatment in a variety of non-malignant conditions, in this context it would have been used as a chemotherapeutic drug for treatment of the lymphoproliferative disorder. He was not receiving the drug as a systemic immunosuppressive drug for treatment of the conditions as outlined in the statement of principles concerning non-Hodgkin's lymphoma, instrument no. 80 of 1999."

19. Mrs Trower said that her husband had rheumatoid arthritis treatment in Townsville in the early 1990s but, if he did, there is no evidence that either of the two drugs prescribed by Dr Meagher for treatment of the condition described in Exhibit 2 was in any way related to the rheumatoid arthritis.. The mere use of an immunosuppressive drug for any purpose does not enliven factor 5(c); it is only when such a drug is used for the treatment of the conditions named in 5(c) that the drugs are recognised as providing a basis for a relevant hypothesis. Furthermore, it seems to me, that any such treatment must also have been given to the patient during the patient's relevant service within 10 years before the onset of the lymphoma. In my opinion factor 5(c) does not assist the applicant's claim.

20. Mrs Trower maintained that while serving in New Guinea during the Second World War her husband had Helicobacter Pylori infection. Based no doubt upon the Advisory from the Disability Compensation Branch No 6/99 (referred to at the hearing by Mr Stoner) (Exhibit 25), Mrs Trower in her letter of 14 November 2003 (Exhibit 26) claimed that her husband had long term contact with indigenous children in New Guinea. This was supported by Mr Mason's letter of 11 November 2003 which she enclosed. The Advisory No 6/99 suggests that infection by Helicobacter Pylori could be attributed to service if it could be shown that the relevant serviceman's service involved "close personal contact with children for periods totalling at least 6 months". Whilst Mr Mason's letter falls short of establishing such contact for the relevant period I am prepared for present purposes to assume (contrary to the further statement in the Advisory, that Helicobacter Pylori infection "cannot be related to service before 1983, the year in which pathology testing became available") that Mr Trower may have acquired Helicobacter Pylori during relevant service. Unfortunately this assumption still falls short of providing a basis for saying that SoP factor 5(h) is applicable. I refer to the report of Dr Amanda Casperson (Exhibit 8) in which she says:

"In my medical opinion, Mr Trower's Mantle Cell lymphoma is a different and separate malignancy from the `primary B-cell lymphoma of the stomach only' named in SoP factor 5(g), of the SoP Number 80 of 1999. Therefore in my medical opinion this SoP factor does not apply in this case."

Although Dr Casperson refers to factor 5(g), this is clearly an error. It is plain that she was referring to factor 5(h) and I so interpret her opinion.

21. There is no suggestion that Mr Trower's lymphoma actually developed during his service so factor 5(g) cannot apply (see SoP 80 of 1999 para 6).

22. I am unable to see any basis for relating any other factors mentioned in para 5 of SoP 80 of 1999 to Mr Trower's service.

23. In my opinion the evidence does not raise a reasonable hypothesis connecting the death of Mr Trower to his service and I am therefore satisfied beyond reasonable doubt that his death was not war caused.

24. The decision under review is therefore affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President).

Signed: Sarah Oliver

Associate

Dates of Hearing 14 October 2002 and 10 November 2003

Date of Decision 16 December 2003

The Applicant appeared in person

For the Respondent Mr J Stoner, Departmental Advocate