Cody and Repatriation Commission

[2001] AATA 995

DECISION AND REASONS FOR DECISION [2001] AATA 995

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/951

VETERANS' APPEALS  DIVISION       )          
           Re      DAPHNE MARJORIE CODY      
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date6 December 2001 

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war-caused within the terms of section 8 of the Veterans' Entitlements Act 1986.          
  (Sgd) K L Beddoe
  Senior Member

Decision No: 995/2001
CATCHWORDS
  VETERANS' AFFAIRS – widow's pension - whether reasonable hypothesis connecting veteran's death with the circumstances of service rendered

Veterans' Entitlements Act 1986 s 6, 8, 120
Statements of Principles – Instrument No 113 of 1996, 25 of 1997
Byrnes v Repatriation Commission (1993) 116 ALR 210.
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

6 December 2001              Mr K L Beddoe (Senior Member)            

1. The applicant seeks review of a decision of the respondent to refuse payment of a widows pension following the death of her husband ("the Veteran").  The Veterans' Review Board subsequently affirmed the decision.

2. At the hearing Mr O'Gorman appeared for the applicant and Mr Williams represented the respondent. Oral evidence was given by the applicant, Dr Grant and Dr Beadle. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.

3. Section 8 of the Veterans' Entitlements Act 1986 ("the Act") relevantly provides that the death of a veteran shall be taken to have been war caused if the death of the veteran arose out of, or was attributable to any eligible war service rendered by the veteran (s 8(1)(b)).

4. The issue to be determined in this case is whether there is a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service rendered by the veteran (s120(3) of the Act). In this case there is no dispute that the veteran's service in World War II included operational service so that by virtue of section 6A(1) all of his eligible war service is deemed to be operational service.

5. In this case the reasonableness of the hypothesis connecting the cause of death with the operational service is to be determined by reference to the relevant Statement of Principles or if there is no relevant instrument then in accordance with the principles enunciated by the High Court in Byrnes v Repatriation Commission (1993) 116 ALR 210.

6. If the Tribunal is satisfied that there is a reasonable hypothesis the Tribunal must then consider whether it is satisfied, beyond reasonable doubt, that the veteran's death was not war-caused. If so satisfied then the claim will fail (s 120(1) of the Act).

7. I make the following findings of fact.  The veteran was born on 22 October 1917 and died 25 March 1998.  He had operational service from 22 May 1940 to 4 August 1945.

8. Cause of death recorded on the veteran's death certificate is as follows:

   "(a)     extensive pulmonary metastasis of carcinoma of tongue
   (b)       adenoid cystic carcinoma of base of tongue"

Duration of illness was recorded as (a) 6-8 months, (b) 7 years.

1. There is no dispute that the veteran used alcohol on a regular basis after his war service and that use resulted in the consumption of more than 250kg of alcohol before diagnosis of the adenoid cystic carcinoma of the base of the tongue in 1991.  I so find.

2. I also find that the veteran's use of alcohol had a likely connection with his war service because of the change in his use of alcohol after the war (Exhibits B, C, D, E and F refer).
   The Medical Evidence

3. Document T4 includes a copy of a report by Dr Wyld, medical oncologist, dated 7 November 1997 and addressed to the Department of Veterans' Affairs.  Dr Wyld reported on the basis of his own care for the late veteran in 1997 and on the basis of prior records.  He recorded a history of excision of an adenoid cystic carcinoma (Exhibit 3 refers) arising in the base of the tongue in November 1991.  Histopathology of the lesion removed at that time showed a 4cm adenoid cystic carcinoma not involving the mucosa.  The veteran had surgery and radiotherapy between December 1991 and February 1992.  He was reported as remaining well until 1997 when multiple lung lesions consistent with multiple metastases, which were found to be malignant, were found and diagnosed as metastatic adenoid cystic carcinoma of the lung.  Chemotherapy was prescribed.  As already noted the veteran died in March 1998.

4. In a report dated 30 May 2000 Dr Grant, Senior Medical Officer in the Department of Veterans' Affairs, expressed the opinion that the tumour was most likely to have arisen from the minor salivary glands in the base of the tongue as distinct from a sub-lingual origin.  Dr Grant expressed the opinion that Instrument No 25 of 1997 was the relevant Statement of Principles (Exhibit 1).

5. In oral evidence Dr Grant explained the significance of the ICD9 classification codes in the context of Statements of Principles.  He expressed the opinion that Instrument No 25 of 1997 was the applicable statement.  It covers malignant Neoplasm of the Salivary Gland and has the ICD code 142.

6. However, as Dr Grant explained, there is a conflict with Instrument No 113 of 1996 (Malignant Neoplasm of the Oral Cavity or Hypopharynx).  That instrument embraces ICD code 141 amongst many others but the definition of "malignant neoplasm of the oral cavity or hypopharynx" which includes a primary malignancy, inter alia, of the mucosa of the oral cavity including the tongue but excluding malignant neoplasm of the minor salivary glands attracting, inter alia, ICD 141.

7. In this case the fatal lesion was reported as an adenoid cystic carcinoma and Dr Grant did not see any reason to contest this diagnosis.  He expressed the opinion that this type of neoplasm arises from the minor salivary glands and is the most common type.

8. Dr Grant explained the malignant neoplasm is a sub-group of item ICD 145 being item ICD 145.9 for minor salivary gland not elsewhere classified.  Item ICD 142.9 applies to minor neoplasms of the major salivary glands.  The Queensland Cancer Registry said the site code was 141.0 (Exhibit A).

9. In the result the Tribunal decided that Instrument No 113 of 1996, (Malignant Neoplasm of the Oral Cavity or Hypopharynx) applied, as an interim view.  I took the view that was the most appropriate Statement of Principles because Instrument No 25 of 1997 (Malignant Neoplasm of the Salivary Gland) was limited to ICD Code 142 by the definition of "malignant neoplasm of the salivary gland".  As already noted a neoplasm of the minor salivary gland attracts ICD Code 145.9 which is covered by Instrument No 113 of 1996.  The condition is excluded from ICD 142.  I see no reason to change the interim decision and have proceeded on the basis that Instrument No 113 of 1996 is applicable.  In so far as Mr O'Gorman suggested that there was not an applicable Statement of Principles I am not satisfied that is the case, for the reasons already stated.

10. In his evidence Dr Beadle, Oncologist, said that there were three known risk factors:

    (a)ionising radiation

    (b)genetic predisposition; and

    (c)Inhalation of wood dust.

There were also unknown contributing factors.  But alcohol use has not been documented as a cause of salivary gland cancers.

1. Dr Beadle said that the pathology report did not specify the site but Dr Lau took a biopsy of the posterior of the tongue in 1991.  Tests in 1997 showed that the cancer had spread from the tongue to the lungs which is consistent with Dr Wyld's report.
   the Applicant's Submissions

2. Mr O'Gorman relied on written and oral submissions.  Instrument 113/1996 covers the cause of death and in particular clause 5(c) of the Instrument is satisfied (inability to obtain appropriate clinical management).

3. Alternatively there is not an applicable Statement of Principles and there is a reasonable hypothesis that satisfies the test explained by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

4. The applicant should succeed because the veteran has been shown to have consumed at least 250kg of alcohol before the onset of malignant neoplasm of the oral cavity or hypopharynx diagnosed in 1991.  The correct site code for the veteran's condition is ICD 141 which comes within Instrument No 113 of 1996.  The diagnosis was made December 1991/February 1992.

5. There, is a relationship between the veteran's consumption of alcohol and his operational service during World War II.

6. If the Bushell/Byrnes test is to be applied because there is not an applicable Statement  of Principles than a reasonable hypothesis is open because:

   (a)the hypothesis is that heavy consumption of alcohol causes carcinoma of the tongue and base of tongue;

   (b)that hypothesis is not contrary to known scientific fact;

   (c)that hypothesis is not fanciful or untenable;

   (d)(a), (b) and (c) above are derived from factor 5(c) of Instrument 113 of 1996; and

   (e)there is nothing that disproves the hypothesis beyond reasonable doubt.

1. Dr Beadle was correct in his opinion that ICD Code 142 does not apply to minor salivary glands.
   The Respondent's Submissions

2. Instrument 25 of 1997 is the applicable Statement of Principles. Dr Grant's opinion is this regard is to be preferred to Dr Beadle's opinion.

3. Because instrument No 25 of 1997 is the applicable Statement of Principles the applicant's hypothesis cannot succeed being outside the terms of the instrument as conceded for the applicant.
   Consideration

4. The hypothesis that the veteran's alcohol consumption related to his war service and caused the carcinoma of the tongue will be a reasonable hypotheses if:

   (a)the material before the Tribunal points to a hypothesis connecting the veteran's death with the circumstances of his operational service; and

   (b)there is in force a Statement of Principles and the hypothesis is consistent with the requirements of the statement so that one or more of the factors which the statement requires to be satisfied is satisfied to the reasonable satisfaction of the Tribunal; or

   (c)there is no relevant Statement of Principles in force then the matter is to be decided in the light of the Bushell/Byrnes doctrine.

5. In either case the Tribunal must consider, in accordance with sub-section 120(1) of the Act, whether it is satisfied, beyond reasonable doubt, that the veteran's death was not war caused. If the Tribunal is not so satisfied beyond reasonable doubt then the claim must succeed. If the Tribunal is so satisfied then the claim will fail.

6. Because Instrument No 25 of 1997 is confined to conditions identified under ICD Code 142 and the evidence shows that the veteran's condition was covered by ICD Codes 141 and 145, I am satisfied that the applicable Statement of Principles is Instrument 113 of 1996.

7. The question to be resolved is whether the hypothesis comes within paragraph 5 of the Statement of Principles.  It was not suggested and the material does not admit any possibility of paragraphs 5(a) or 5(b) being satisfied.

8. The only factor in paragraph 5 of the Statement of Principles that can possibly arise is 5(c) which relevantly reads as follows:

   "The factor(s) that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the oral cavity or hypopharynx with the circumstances of a person's relevant service (is) drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) before the clinical onset of malignant neoplasm of the oral cavity or hypopharynx"

1. The evidence establishes a direct link between the veteran's alcohol abuse and his operational service.  The alcohol abuse is the relevant causative factor connecting the malignant neoplasm with the operational service.  In this regard factor 5(c) of Instrument 113 of 1996 is satisfied.

2. In the result I am satisfied there is a reasonable hypothesis connecting the veteran's operational service with the cause of death.  There is no basis, on the material for being satisfied beyond reasonable doubt that the veteran's death was not war-caused.

3. The decision under review will be set aside and a decision substituted that the veteran's death was war-caused within the terms of section 8 of the Act. The matter will be remitted to the Respondent to give effect to the Tribunal's decision.

   I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

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

   Date/s of Hearing  16 August 2001
     11 September 2001 
   Date of Decision  6 December 2001
   For the Applicant  Mr O'Gorman, Counsel
   For the Respondent                 Mr Williams, Advocate