Browning and Repatriation Commission (Veterans' entitlements)

[2017] AATA 396

Browning and Repatriation Commission (Veterans' entitlements) [2017] AATA 396 (29 March 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/4573

Re:Mabel Browning

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:29 March 2017

Place:Perth

The Tribunal affirms the decision under review.

..........................[SGD]..............................................

Brigadier AG Warner, Member

CATCHWORDS

VETERANS AFFAIRS – war widow’s pension – operational service – whether death war- caused – Statement of Principles No. 75 of 2012 as amended by Amendment Instrument No. 37 of 2016, concerning acute lymphoblastic leukaemia – factor 6(b), being exposed to benzene as specified – whether reasonable hypothesis connecting death to service – material found not to raise reasonable hypothesis – veteran’s death not war-caused – decision affirmed

LEGISLATION

Veterans Entitlement Act 1986 – s 5B(1) – s 13(1) – s 120(1), (3) – s 120A –
s 196B(14)(a), (b), (d), (f)

CASES

East v Repatriation Commission (1987) 16 FCR 517
Kattenberg v Repatriation Commission [2002] FCA 412
Re Greenough and Repatriation Commission [2002] AATA 774
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Whitworth v Repatriation Commission [2003] FCA 1530

SECONDARY MATERIALS

Creyke R and Sutherland P, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016)

Department of Veterans’ Affairs, SOP Bulletin No. 189 – Benzene SOP Factors

Statement of Principles No. 75 of 2012 – para 6(b)

Statement of Principles No. 75 of 2012 as amended by Amendment Instrument No. 37 of 2016 – paras 5, 6, 7, 9

REASONS FOR DECISION

Brigadier AG Warner, Member

29 March 2017

INTRODUCTION

1. Mrs Mabel Browning is seeking review of a Veterans’ Review Board (VRB) decision dated 15 June 2015 (T2/B1-B7).  That decision affirmed a determination by a delegate of the Repatriation Commission dated 6 March 2014, that the death of Mr Raymond G Browning was not related to his operational or eligible service (T11/133).

2. Mrs Browning’s medical conditions precluded her attendance at the hearing, but her son Mr Shane Browning and her daughter-in-law Ms Mary Keogh attended. Mrs Browning was represented by Mr Graham Follington of Perth Legacy.

3. The Tribunal noted that Mrs Browning had been listed as a witness. Mrs Browning’s attending family members and Mr Follington confirmed their desire for the hearing to proceed without Mrs Browning.

   BACKGROUND

4. Mr Browning was born in 1932 and served in the Royal Australian Air Force (RAAF) from 11 January 1952 until 11 November 1987.

5. Mr Browning rendered operational service with the Far East Strategic Reserve from 3 December 1960 until 27 May 1963.  This constitutes “operational service” for the purposes of the Veterans’ Entitlements Act 1986 (VE Act) – see s 5B(1).  He also rendered eligible service during the period 7 December 1972 until 11 November 1987.

6. Mrs Browning and Mr Browning married in 1954 (T3/45-6).

7. On 21 March 1989, the Department of Defence admitted liability for Mr Browning’s acute lymphoblastic leukaemia under the provisions of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (T4/36).

8. Prior to his death, Mr Browning had no accepted disabilities under the VE Act. A claim for acute lymphoblastic leukaemia was rejected on 23 May 1989 (Exhibit 3, para 3.9).

9. Mr Browning died, at age 56 in 1988. His death certificate records the cause of death as – cardiorespiratory arrest minutes, overwhelming septicaemia days, Mathicillin resistant staphylococcus aureus, acute lymphocytic leukaemia years, right ventricular embolus hours (T8/126). If Mr Browning’s death was “war caused” his widow is entitled to a compensation pension: VE Act s 13(1). On 19 December 2013, Mrs Browning lodged a claim for acceptance of the death of Mr Browning as being service related (T7/116-125).

10. On 6 March 2014, a delegate of the Repatriation Commission determined that Mr Browning’s death was not related to service and that a war widow’s pension was not payable (T11/130-133). The VRB affirmed the delegate’s decision on 15 June 2015 (T2/B1-B7).

    ISSUE

11. The Tribunal must decide whether, on the material before it, the Tribunal can form the opinion that the material raises a reasonable hypothesis that Mr Browning’s death arose out of or was attributable to, or was contributed to in a material way or aggravated by the particular circumstances of his operational service.

    LEGISLATION AND PRINCIPLES FOR DETERMINING “WAR CAUSED”

12. Mrs Browning’s claim relates her husband’s death to his operational service. Therefore that death must be determined to have been “war caused” in the absence of satisfaction, beyond reasonable doubt, “that there is no sufficient ground for making that determination”: VE Act s 120(1). That satisfaction is reached if the material relating to Mrs Browning’s claim “does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person”: VE Act s 120(3).

13. Section 120A of the VE Act requires that the Tribunal assess the reasonableness of hypotheses in accordance with any Statements of Principles (SoP) issued by the Repatriation Medical Authority (RMA) or any relevant determinations or declarations under the VE Act. SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between particular injuries, diseases or death and service. SoPs are binding on decision-makers at all levels, including the Tribunal. A factor is “related to service” if, amongst other things, it has resulted from a service occurrence, arose out of the person’s service, was materially contributed to by the person’s service, or would not have occurred but for that service: VE Act s 196B(14)(a), (b), (d) and (f).

14. Where a RMA SoP applies to a particular kind of death, a connecting hypothesis raised by the claim material can only be considered as reasonable for the purposes of the VE Act if it is upheld by the relevant SoP: VE Act s 120A(3); Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97G. In circumstances where there is no SoP, nor a statement by the RMA that it does not propose to produce one, nor a relevant determination, an hypothesis will not be reasonable if it is either contrary to known scientific facts, obviously fanciful, remote or tenuous.

15. In Deledio, the Full Court of the Federal Court set out the steps that must be followed in matters like that presently before the Tribunal. The Tribunal must consider four distinct matters in determining whether a veteran’s death was “war caused”, where the claim relies on a circumstance “related” to a person’s operational service.  Those matters are:

    (a)Whether the claim material (that is, the whole of the available information, including contentious assertions) gives rise to a reasonable hypothesis relating to the person’s death to their operational services;

    (b)Whether a SoP applies to the person’s kind of death;

    (c)Whether the otherwise reasonable hypothesis contains any of the “factors” that an applicable SoP stipulates must be related to the claimant’s service; and

    (d)If the claim material “points to” a required factor, a factual assessment is required. That assessment is whether any of the facts supporting the hypothesis have been disproved, or contradicted, beyond reasonable doubt.

    EVIDENCE

16. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-T15, pp A1-152) (Exhibit 1);

    ·Applicant’s Statement of Fact, Issues and Contentions dated 29 July 2016, including Attachments A-L (Exhibit 2);

    ·Respondent’s Statement of Issues, Facts and Contentions dated 3 September 2016 (Exhibit 3);

    ·Personal Record Extract – WOFF Raymond George Browning (Exhibit 4);

    ·Postings Airmen dated 14 July 1960 (Exhibit 5);

    ·Defence OHS Fact Sheet No. 18 – November 2009 (Exhibit 6);

    ·Glass DC, Adams GG, Manuell RW and Bisby JA, “Retrospective Exposure Assessment for Benzene in the Australian Petroleum Industry” (2000) 44(No 4) Ann Occup Hyg 301-320 (Exhibit 7);

    ·Monash University and Deakin University - Lympho-haematopoietic Cancer and Exposure to Benzene in the Australian Petroleum Industry dated June 2001, pp 23 and 33 (Exhibit 8);

    ·Photograph RAAF Equipment circa 1980 (Exhibit 9);

    ·RAF Museum email dated 22 July 2016 (Exhibit 10).

    ·The oral evidence of Mr Shane Browning;

    ·The oral evidence of Mr Jon Mason; and

    ·The oral evidence of Mr John Nordheim.

    CONSIDERATION

    VRB decision

17. The Tribunal’s review is de novo, permitting the Tribunal to look at the law and facts, including any new evidence, as at the date of the hearing.  That said, it is appropriate to look at the VRB decision (T2/B1-B7) where it has relevance to the present proceedings.

18. The VRB was satisfied that having regard to the death certificate (T4/44) and the opinion of the Departmental Medical Officer (T9/127), the primary cause of Mr Browning’s death was acute lymphocytic leukaemia.  The Tribunal is similarly satisfied.

19. The SoP relevant to the VRB consideration was SoP No. 75 of 2012 concerning acute lymphoblastic leukaemia.  The relevant factor was para 6(b), namely:  “Being exposed to benzene on at least 600 days within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia, where the first exposure occurred at least five years before the clinical onset of acute lymphoblastic leukaemia”.  The SoP defines “being exposed to benzene” at para 9 as:

    (a)having cutaneous contact with liquids containing benzene greater than 5% by volume;

    (b)ingesting liquids containing benzene greater than 5% by volume; or

    (c)inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million.

20. The VRB decision contains the following statements (T2/B6):

    There was no material presented to demonstrate a causal connection between the veteran’s service, his diagnosis of acute lymphocytic leukaemia, or his death from that condition.

    There was no material presented to demonstrate that the veteran was exposed to the level of benzene required by the relevant Statement of Principles.

    …

    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).

    Mrs Browning’s claim hypothesis

21. In the Claim for Pension by a Widow dated 22 October 2013 and lodged on Mrs Browning’s behalf, the claimed service cause of Mr Browning’s death was stated as:  “Leukaemia accepted under SRCA.  Condition linked to benzene exposure – SoP factor 6(b).  Veteran was a motor mechanic during his operational service” (T7/120).

22. The hypothesis advanced in this case is that Mr Browning’s death from acute lymphoblastic leukaemia is connected to exposure to benzene in the course of his RAAF service (T14/140).  Relevantly, Mr Follington told the Tribunal “our contention is based solely around the veteran’s exposure to benzene during a five year period, including his operational service”.

    Matters not in dispute

23. A number of matters were common ground in the review proceedings and the Tribunal finds that:

    ·Mr Browning rendered operational service during the period 3 December 1960 to 27 May 1963, and eligible service during the period 7 December 1972 to 11 November 1987;

    ·Mr Browning died in 1988 and the “kind of death” has been determined as acute lymphoblastic leukaemia;

    ·Mr Browning’s acute lymphoblastic leukaemia was a “kind of death” for the purposes of the VE Act;

    ·Mrs Browning was a dependent (widow) of the veteran, Mr Browning, when he died; and

    ·At the relevant time, petrol contained more than one per cent benzene.

    Statement of Principles

24. It was agreed between the parties and the Tribunal so finds that the relevant SoP in relation to Mr Browning’s acute lymphoblastic leukaemia is SoP No. 75 of 2012 as amended by Amendment Instrument no. 37 of 2016.  Relevantly, SoP No. 75 provides as follows:

    Factors that must be related to service

    5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

    Factors

    6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting acute lymphoblastic leukaemia or death from acute lymphoblastic leukaemia with the circumstances of a person’s relevant service is:

    (a) having received a cumulative equivalent dose of at least 0.01 sievert of ionising radiation to the bone marrow at least one year before the clinical onset of acute lymphoblastic leukaemia; or

    (b)       being exposed to benzene as specified:

    (i)for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia; and

    (ii)where the first exposure in that period occurred at least five years before the clinical onset of acute lymphoblastic leukaemia; or

    (ba)receiving greater than ten ppm-years of cumulative exposure to benzene before the clinical onset of acute lymphoblastic leukaemia, and where the first exposure occurred at least five years before the clinical onset of acute lymphoblastic leukaemia; or

    (c)undergoing treatment for a malignant neoplasm with an alkylating agent or a DNA topoisomerase II inhibitor before the clinical onset of acute lymphoblastic leukaemia, where the first exposure occurred at least one year before the clinical onset of acute lymphoblastic leukaemia, and where that exposure has ceased, the clinical onset of acute lymphoblastic leukaemia occurred within 20 years of cessation; or

    (d)receiving a solid organ transplant from a donor with lymphoma or lymphatic leukaemia before the clinical  onset of acute lymphoblastic leukaemia; or

    (e)inability to obtain appropriate clinical management for acute lymphoblastic leukaemia.

    Factors that apply only to material contribution or aggravation

    7.Paragraph 6(e) applies only to material contribution to, or aggravation of, acute lymphoblastic leukaemia where the person’s acute lymphoblastic leukaemia was suffered or contracted before or during (but not arising out of) the person’s relevant service.

    …

    Other Definitions

    9.        For the purposes of this Statement of Principles:

    “being exposed to benzene as specified” means:

    (a)having cutaneous contact with liquids containing benzene greater than 1% by volume; or

    (b)ingesting liquids containing benzene greater than 1% by volume; or

    (c)inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million;

    “cumulative equivalent dose” means the total dose of ionising radiation received by the particular organ or tissue.  The formula used to calculate the cumulative equivalent dose allows doses from multiple types of ionising radiation to be combined, by accounting for their differing biological effect.  The unit of equivalent dose is the sievert. For the purposes of this Statement of Principles, the calculation of cumulative equivalent dose excludes doses received from normal background radiation but includes therapeutic radiation, diagnostic radiation, cosmic radiation at high altitude, radiation from occupation related sources and radiation from nuclear explosions or accidents;

    “death from acute lymphoblastic leukaemia” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s acute lymphoblastic leukaemia;

    “8-hour time-weighted average (TWA)” means the averaging of different exposure levels to benzene during an average exposure period equivalent to eight hours;

    “ICD-10-AM code” means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10^th Revision, Australian Modification (ICD-10-AM), Seventh Edition, effective date of 1 July 2010, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 978 1 74210 154 5;

    “ppm-years” means parts per million multiplied by years of exposure;

    “relevant service” means:

    a)    operational service under the VEA;

    b)    peacekeeping service under the VEA;

    c)    hazardous service under the VEA;

    d)    British nuclear test defence service under the VEA;

    e)    warlike service under the MRCA;

    f)     non-warlike service under the MRCA;

    “terminal event” means the proximate or ultimate cause of death and includes:

    a)    pneumonia;

    b)    respiratory failure;

    c)    cardiac arrest;

    d)    circulatory failure; or

    e)    cessation of brain function.

25. At the hearing it was confirmed that Mrs Browning’s claim relies only on factor 6(b) above as it relates to exposure to benzene as specified: “for a cumulative total of at least 2 500 hours within a continuous period of five years and before the clinical onset of acute lymphoblastic leukaemia; and where the first exposure in that period occurred at least five years before the clinical onset of acute lymphoblastic leukaemia.”  In the present proceedings “being exposed to benzene as specified” means “having cutaneous contact with liquids containing benzene greater than one per cent by volume.“

26. The Tribunal notes that exposure to benzene is only a factor in operational service/reasonable hypothesis cases.  There is no similar benzene factor for eligible service which constitutes the majority of Mr Browning’s RAAF service.

27. In advancing the hypothesis in this matter, Mr Follington told the Tribunal that satisfaction of factor 6(b) relies on the case of Kattenberg v Repatriation Commission [2002] FCA 412 (Kattenberg).  Relevantly, Veterans’ Entitlements and Military Compensation Law states at p 419:

    In Kattenberg v Repatriation Commission (2002), the Federal Court held that  where, in an operational service matter, consumption of, or exposure to, an agent for a required number of hours or days is in issue, it is not necessary that it be suggested that the whole of that consumption or exposure took place during the operational service.  It is sufficient, in accordance with s 196B(14) of the Act, if the required consumption or exposure was contributed to in a material degree by the operational service: Re Elston and Repatriation Commission (2004).

28. Before the Tribunal, the Respondent submitted that consideration of Kattenberg would allow the Tribunal to look at exposure to benzene outside Mr Browning’s operational service as a component of the 2,500 hours required to satisfy factor 6(b), but only if the Tribunal was satisfied that there was a material contribution from the operational service.  The Tribunal agrees.

    SOP Bulletin No. 189

29. Mindful of the limited evidentiary role of this document in the Tribunal’s analysis, the Bulletin provides some relevant information and guidance.

30. Military benzene exposure levels are explained as follows at p 4:

    Current or recent military service is generally not associated with exposure to potentially harmful levels of benzene.  Of particular note - currently used military fuels have low levels of benzene (much lower than petrol) and are generally not a significant source of exposure.  There may be specific occupational categories that are or were associated with increased exposure.  The circumstances in each individual case will need to be carefully considered.

    Measured benzene vapour in air levels for specific military settings are highly unlikely to be available.

    As a generalisation, the further back in time service occurred the greater the potential for significant benzene exposure.

1. Guidance provided under the heading “Applying the SOP factors” at p 4 includes the following:

   Specific detailed information about a person’s benzene exposure will typically not be available and so applying the SOP factors is unlikely to be straightforward.  The factors and associated definitions provide for exposure via three pathways: skin contact; ingestion; and inhalation.

   Skin contact with products containing 1% benzene could have occurred in a variety of situations, such as washing hands in petrol (pre-2006) and manually using liquid products containing ≥ 1% benzene in occupational settings without adequate skin protection.  Such products were much more likely to have been used in the middle part of the last century than in the last several decades.  Prolonged skin contact is the pathway that (in general) provides the best prospects of meeting the SOP requirements.

2. Although not specific to Mr Browning’s particular circumstances, the footnote reference documents indicate a link between benzene and leukaemia.

   Medical evidence

3. The date of onset of Mr Browning’s acute lymphoblastic leukaemia is not in dispute.  The medical evidence records that the condition was originally diagnosed on 10 March 1987 (T3/18).

4. As stated at paragraph 20 above, the VRB found no evidence of a causal connection between Mr Browning’s service and his diagnosis of, or death from acute lymphoblastic leukaemia.  There are three medical opinions regarding the cause of the condition in the material before the Tribunal.

5. In a Repatriation General Hospital Concord letter dated 18 January 1988 (T4/90), Dr MD Nicholls, staff haematologist, states:

   The risk of leukaemia is increased with exposure to ionizing radiation, chemicals (especially benzene) and drugs used in the treatment of other malignancies.  In addition viruses have been implicated to lymphoid malignancies in man ie Burkitt’s lymphoma and adult T cell leukaemia/lymphoma.  There is no suggestion that these can be implicated in this case.

   Radar emissions with different energy emissions to X-ray’s, have not been proven to be causative in Acute Leukaemia.  Exposure to an unidentified leukaemogenic factor such as solvents or other chemical exposure cannot however be excluded.

6. In a medical report dated 9 August 1988 (Exhibit 2 att C), in referring to Mr Browning’s acute lymphoblastic leukaemia Kevin Collins stated:

   The cause, in this case, is not known … There is no increased evidence of leukaemia in people exposed to radar equipment, additives to aviation fuel, fuels, oils, greases, paints or cleaning solvents.  There is no evidence of any prolonged exposure to benzene or benzene derivatives during eligibility period.  Perusal of service documents reveals nothing during eligibility period which could be associated with the aetiology of, or predisposed the veteran to develop lymphoblastic leukaemia.

7. In commenting on Mr Browning’s cause of death, the Departmental Medical Officer Dr Yohan Yin wrote on 16 January 2014 (T9/127):

   There is no evidence that the late veteran had prolonged exposure to benzene during his period of eligible service.  The other criteria of the RMA SOP for acute lymphoblastic leukaemia are not met.

   Evidence of Mr Browning’s exposure to benzene

8. In a document related to a Defence compensation claim for acute lymphoblastic leukaemia, Mr Browning stated “My condition was aggravated whilst being exposed to Air Craft Fuels and oil, Motor Transport Fuels and oils, and greases, solvent type cleaning materials, Vehicle spray Painting and solvents” (T4/95).  The document provides no further details on the nature or extent of the claimed exposure.

9. An Air Force Office minute dated 22 January 1988 relevant to Mr Browning’s compensation claim advises:  “It is confirmed that a Motor Transport Fitter’s duties can result in exposure to fuels, oils, cleaning solvents etc.” (T4/87).

10. An undated case summary document related to Mr Browning’s Defence compensation claim includes the following comment in relation to his leukaemia (T4/78-79):

    It is confirmed that a Motor Transport Fitter’s duties can result in exposure to fuels, oils, cleaning solvents etc.  During the early years of WOFF Browning’s career (1950s) his duties may have exposed him to benzene in aviation and vehicle fuels, and possibly, cleaning fluids.  As a Motor Transport Fitter he was employed in charge of aircraft fuel tankers at East Sale in 1954/55.

    In a recent case, RAAF specialist officers referred to the volume of benzene in AVGAS 100/130 as less than 1%. The volume of motor fuels is not known.

    Witness evidence

11. Mr Browning’s son, Mr Shane Browning, gave evidence before the Tribunal and confirmed his statement dated 20 July 2016 (Exhibit 2 att L).  He described joining his father once every two or three months at his workplace on the RAAF base during the period 1965 to 1973.  He recalled his father handling fuels like petrol and that “he’d be pulling parts out of vehicles and putting parts back into vehicles”.  Mr Browning’s written statement included the observation that:  “We did not have any protective clothing or apparatus and I never saw any protective clothing or apparatus” (Exhibit 2 att L).

12. Mr Charles Mason gave evidence before the Tribunal.  He confirmed that he joined the RAAF in 1973 and therefore was not serving at the time of Mr Browning’s operational service in the period 1960 to 1963.  Mr Mason further confirmed that he did not serve in any posting with Mr Browning and that his evidence was based on his own experience and service.  Mr Mason served in a similar employment mustering to Mr Browning and his evidence described what he considered were Mr Browning’s likely duties and exposure to fuels. 

13. In a written statement (Exhibit 2 att I), Mr Jon Nordheim provided details of the duties and conditions of service he experienced with Mr Browning at RAAF Base Williamtown and RMAF Base Butterworth in the early 1970s.  The Tribunal notes that these shared periods of service were outside Mr Browning’s period of operational service, but accepts the evidence.

14. Mr Nordheim also gave evidence at the hearing by telephone conference.  Mr Nordheim told the Tribunal that in his view the role that he and Mr Browning performed in Butterworth in the early 1970s was the same as that performed by Mr Browning during his operational service, and “the only changes might have been that the Mirage came into the Air Force I think in the late 60s, 68, 69, thereabouts”.   Mr Nordheim detailed the lack of protective clothing, and in answering  a question related to the amount of time Mr Browning might have spent washing parts in various chemical agents, he responded:

    Snow was a hands-on sort of a guy, he just got in – if something needed to be  done he said, “Come on, let’s get in and do it”.  He wouldn’t stand there and say, “It’s your job, you do it, I don’t want to get my hands dirty”.

15. The Tribunal notes that Mr Mason and Mr Nordheim did not serve with Mr Browning at the relevant time and their evidence, although honestly given, does not constitute probative evidence of the exposure to benzene actually experienced by Mr Browning during his operational service.

    Deledio tests

16. The Tribunal now turns to the Deledio tests required in veterans’ matters of this kind and outlined at paragraph 15 above.

17. There are necessary antecedent enquiries before application of the Deledio steps.  They are: whether Mrs Browning is a dependent; whether Mr Browning has died, and if so his “kind of death”; and the nature of Mr Browning’s service.  The Tribunal’s findings on these enquiries are at paragraph 23 above.

18. The Tribunal now turns to the first of the Deledio steps.  There is evidence before the Tribunal that members of the RAAF in musterings or employments like that of Mr Browning may have been exposed to benzene.  There is material before the Tribunal that exposure to benzene can be linked to acute lymphoblastic leukaemia, and the RMA has produced a SoP accordingly.  On this basis, the Tribunal accepts that the material raises a hypothesis connecting Mr Browning’s death with his operational service.

19. There is an applicable SoP in force, namely No. 75 of 2012, as amended by No. 37 of 2016.  The provisions of the SoP are detailed in paragraph 24 above.

20. In the third step of Deledio, the Tribunal must form the opinion whether the hypothesis advanced is a reasonable one.  At this step, the Tribunal is not concerned with proof or disproof of factors and is not engaged in fact-finding.

21. At the outset, the Tribunal repeats the cautionary comment in SOP Bulletin No. 189, that “applying the SOP factors is unlikely to be straightforward”.

22. The material above related to Mr Browning’s exposure to benzene, and the evidence of the witnesses before the Tribunal, do not in the Tribunal’s view provide probative evidence pertaining to Mr Browning’s particular circumstances or to the specified exposure to benzene as required by the SoP.  Relevantly, the Respondent similarly submits “that no evidence or contemporaneous records have been produced to support a conclusion that the veteran met the required period of exposure or levels” (Exhibit 3 para 4.7).

23. Relevantly, a case that holds that for a hypothesis to be reasonable, the hypothesis must be consistent with the template in the applicable SoP is Repatriation Commission v Hill (2002) 69 ALD 581, which states at [55]:

    Put another way, a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP.

24. East v Repatriation Commission (1987) 16 FCR 517 is relevant to consideration of a SoP which requires a specific exposure rather than pointing to some degree of exposure. East held as follows at p 533:

    The necessity for quantitative evidence in the particular case must depend upon the nature of the hypothesis being expounded.  For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of exposure.  The hypothesis itself makes quantity irrelevant.  If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.

25. A second and significant difficulty arises in determining the reasonableness of Mrs Browning’s hypothesis in that there is no medical evidence pointing to a connection between Mr Browning’s operational service and his acute lymphoblastic leukaemia.

26. In submissions relevant to this difficulty, the Respondent directed the Tribunal to the case of Repatriation Commission v Bey (1997) 79 FCR 364, in which the court referred to evidence given by Drs Mackay and Hall as follows at pp 373 and 377:

    Neither put forward material which pointed to the hypothesis advanced by the respondent.  Neither went further than to say that the suggested cause of the disease was a possibility.  Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that.  In our view the Tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent’s rheumatoid arthritis with his war service.

    …

    A “mere possibility”, in the sense of an hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis – it will not be an hypothesis “raised by the facts”.

27. Whitworth v Repatriation Commission [2003] FCA 1530 (Whitworth) is a case involving exposure to benzene (although the hypothesis in that instance connected exposure to benzene with pancytopenia rather than acute lymphoblastic leukaemia as in the present matter).  In the Tribunal’s view, the comments of Ryan J on medical evidence in Whitworth at [14] – [16] are entirely applicable to the present consideration:

    Merely because a theory cannot be excluded as impossible, fanciful or contrary to the known facts does not entail it is reasonable.

    …

    However, a theory that is entirely unsupported by any substantiating fact, and merely provides an explanation connecting a known condition with a known event in the applicant’s history, remains no more than a theory.

    …

    In a situation where the only clinical evidence points away from a hypothesis, it is self-evidently not a reasonable one.

28. The decision under review in the present proceedings was determined with reference to SoP No. 75 prior to amendment by SoP No. 37 of 2016.  In Re Greenough and Repatriation Commission [2002] AATA 774, Deputy President Forgie summarised the approach to be taken by the Tribunal in such circumstances at [59], as follows:

    First consider the claim by reference to the SoP in force at the date of the Tribunal’s decision;

    If the consideration is favourable to the applicant, that is an end to the matter; and

    If the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission’s determination.

29. In the present proceedings there have been no submissions, and there is no material before the Tribunal, that would lead to a favourable conclusion under the previous SoP.  Before the Tribunal, the Respondent contended, and it was not disputed, that: “the SoP in its amended form is the most beneficial to the applicant as the required level of benzene has been reduced by the amendment from being greater than five per cent in volume to greater than one per cent in volume”.

30. For completeness, the Tribunal considered other arguably relevant factors in SoP No. 75.  No submissions were made in relation to other factors listed in the SoP and the Tribunal was unable to identify any factors relevant to Mr Browning’s circumstances.

    CONCLUSION

31. After consideration of the whole of the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting Mr Browning’s death with the particular circumstances of his operational service.  As the hypothesis has failed at the third Deledio step, it is not necessary for the Tribunal to proceed to the fourth Deledio step.  Nor is it necessary to consider further the applicability of Kattenberg (see para 27 above) to this matter

32. The Tribunal is obliged in these circumstances to find that the decision under review should be affirmed.

    DECISION

33. The Tribunal affirms the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

..........................[SGD]..............................................

Administrative Assistant

Dated: 29 March 2017

Date of hearing:	16 December 2016
Advocate for the Applicant:	Mr G Follington Perth Legacy
Counsel for the Respondent:	Ms S Oliver