Bond and Repatriation Commission

[2000] AATA 953

DECISION AND REASONS FOR DECISION [2000] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No. N1999/239

VETERANS' APPEALS DIVISION          )          

Re      Evelyn BOND         

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member    

Date1 November 2000

PlaceSydney

Decision      The Tribunal affirms the decision of a delegate of the Repatriation Commission dated 24 February 1998 that the death of James Bond was not war-caused.        

..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS  – war widow pension – whether death of Veteran war-caused – Veteran died from carcinoma of gallbladder and metastatic carcinoma of liver - Statement of Principles applied – whether hypothesis linking emphysema with death of Veteran reasonable – whether hypothesis linking inflammatory bowel disease with death of Veteran reasonable

Veterans' Entitlements Act 1986 – ss 120A, 120(1), 120(3)
Statements of Principles - Instrument No 31 of 1995, No 144 of 1996, No 171 of 1996, No 73 of 1997, No 39 of 1999

Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

1 November 2000    Mrs M T Lewis, Senior Member                

1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 24 February 1998 that determined that the death of the late James Bond was not related to his war service.  The Veterans' Review Board ("the VRB") affirmed that decision on 30 September 1998.  An application for review was then lodged with this Tribunal on 17 February 1999 by Evelyn Bond ("the Applicant"). 

2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant tendered a written statement as evidence at the hearing (exhibit A) and gave oral evidence.

3. James Bond ("the Veteran") was born on 9 March 1921. He served in the Australian Army from 11 June 1940 to 7 January 1946, including service in the Middle East, New Guinea, Borneo, and the Northern Territory, and as such he had operational service. He died on 25 October 1972 from carcinoma of the gallbladder and metastatic carcinoma of the liver. This application therefore falls for determination pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act").

4. As the Applicant's claim was lodged after 1 June 1994, pursuant to s120A of the Act the Tribunal must determine this matter by applying a Statement of Principles. When the primary decision was made Instrument No. 31 of 1995 was applicable. Since that time that Statement of Principles has been revoked and replaced by Instrument No.39 of 1999. It was submitted for the Respondent that the earlier Statement of Principles should be applied in this case, relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108. As the Applicant was unrepresented she had little understanding of the concept of "accrued rights". However, it was the view of the Respondent and the Tribunal that the later Statement of Principles could not be seen to be more in her favour, and the Tribunal agreed that it was in the Applicant's interests to rely on her accrued rights. Therefore the 1995 Statement of Principles shall be applied. The Tribunal notes that although the Veteran died from metastatic carcinoma of the liver the Statement of Principles relating to carcinoma of the liver (Instrument No.171 of 1996) merely relates to a primary malignant tumour arising from the cells of the liver and is therefore not applicable in this case.

5. The Applicant sought to rely on the Statement of Principles concerning chronic bronchitis and emphysema (Instrument No. 73 of 1997) and in particular factor 5(e) which states –

   Smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema…

However, the insurmountable problem for the Applicant in respect of the emphysema hypothesis is that there is no evidence before the Tribunal that his emphysema was implicated in any way in his death.  His emphysema was merely a condition which co-existed with carcinoma of the gallbladder. There is no evidence that emphysema  caused or contributed to the development of carcinoma of gallbladder in any way. 

1. Moreover, there is no evidence before the Tribunal that the Veteran's heavy smoking habit that continued for many years after his service contributed in any way to the development of carcinoma of the gallbladder.

2. There is no alternative in this matter but to focus on the Statement of Principles concerning malignant neoplasm of the gallbladder, Instrument No 31 of 1995.  The factors set out in that Statement of Principles are:

   (a)suffering chronic inflammatory bowel disease for at least 20 years before the clinical onset of malignant neoplasm of the gallbladder;  or

   (b)being a chronic typhoid carrier before the clinical onset of malignant neoplasm of the gallbladder;  or

   (c)inability to obtain appropriate clinical management for malignant neoplasm of the gallbladder.

3. There is evidence in his service documents (T3, p24) that en route to Palestine by ship he was admitted to the ship's hospital on 19 September 1940 for diarrhoea and discharged the next day.  The Applicant referred to the Veteran contracting ptomaine poisoning after eating a tin of bully beef.  The Veteran made no reference at the time of his discharge from the Army to having had bowel problems while on service, although reference was made to dermatitis and an infected leg. 

4. The Applicant's evidence was that the Veteran returned from his war service "a changed man", experiencing nightmares, smoking heavily and drinking.  After a few years his drinking reduced, but she said that throughout his life he suffered chronically from diarrhoea.  The Applicant was not aware of any diagnosis of the Veteran's poor health prior to the diagnosis of his cancer.  In particular she was not aware of any diagnosis of Crohn's disease, which the Tribunal understands may be causally related to smoking.   There is also no evidence to suggest that he suffered from ulcerative colitis.

5. In considering whether the Veteran suffered from some other inflammatory bowel disease, the Tribunal noted the existence of Instrument No 144 of 1996 on inflammatory bowel disease, which would need to be met.  The only factor relevant in this case is 5(c) which states –

   inability to obtain appropriate clinical management for inflammatory bowel disease.

There is no evidence to support an hypothesis that the Veteran suffered from inflammatory bowel disease on service and was unable to obtain appropriate clinical management for it.  Taking all these factors into consideration the Tribunal finds that factor 1(a) of Instrument No 31 of 1995 is not met.

1. There is no evidence to suggest that the Veteran was a chronic typhoid carrier, and so factor 1(b) does not apply.  There is no evidence that because of the Veteran's war service he was unable to obtain appropriate clinical management for his carcinoma of the gallbladder, which was diagnosed only a short time before his death in 1972.  Therefore factor 1(c) of Instrument No 31 of 1995 does not apply.

2. The Tribunal finds, therefore, that as the requirements of the Statement of Principles have not been met, there is no reasonable hypothesis linking the Veteran's death with his war service and hence the Applicant has failed to meet the provisions of s120(3) of the Act. On that basis the Tribunal must affirm the decision under review.

3. In passing, the Tribunal notes that the Veteran experienced a very hard war and he was obviously grossly affected by it  when he was discharged from the Army.  His heavy smoking habit and consequential emphysema appears to have caused considerable difficulties for him.  His death at the age of 51 years, after many years of poor health, was untimely.  It is apparent from the number of applications which have been lodged regarding the Veteran's carcinoma of the gallbladder and his death, that the Applicant is having some difficulty understanding that although the Veteran's health and peace of mind was affected by his war service in a major way, in order for his death to be accepted as war-caused it is necessary to establish a medically based link between his service, his later poor health, and his death. Unfortunately, establishing that link appears to be insurmountable.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  27 October 2000
Date of Decision  1 November 2000
Solicitor for the Applicant         Self-represented
Advocate for the Respondent  Mr Stephen Modder, Dept. of Veterans' Affairs