Collins and Repatriation Commission

[2004] AATA 550

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 550

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1147

VETERANS' APPEALS  DIVISION		)
Re		JOHN GEORGE COLLINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President Don Muller

Dr. K.P. Kennedy, OBE, Member

Date31 May 2004

PlaceBrisbane

Decision The Tribunal affirms the decision to refuse the claim that the polycythaemia vera suffered by John George Collins is war-caused.

...............SIGNED...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS AFFAIRS – claim that polycythaemia vera war-caused – hypothesis that disease caused by radiation – does not fit the Statement of Principles template – hypothesis not reasonable – disease not war-caused – decision affirmed

Veterans Entitlements Act 1986:  ss9, 13, 120, 120A

Statement of Principles 78 of 1999 as amended by 11 of 2001

REASONS FOR DECISION

Deputy President Don Muller        

1. This is an application made by John George Collins, the Applicant, to review a decision of the Repatriation Commission dated 3 December 2001 to reject a claim for medical expenses and pension, pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the Act) for the Applicant’s condition of polycythaemia vera as a war-caused disability within the meaning of that term in section 9 of the Act.

2.      Mr. Collins was first diagnosed with polycythaemia vera (PV) in December 1986.  He claims that his PV was caused by his exposure to atomic radiation when he served with the Australian Army in Hiroshima in 1947/48.

3.      Under section 9 of the Act a disease is taken to be war-caused if it arose out of, or was attributable to any eligible war service rendered by the veteran.

4.      The Tribunal heard oral evidence from the Applicant, Dr. David Bernshaw, Radiation Oncologist and Dr. John Coates, Dermatologist.  In addition, the Tribunal had before it the following documents:

(a)The documents, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 , exhibit 1;

(b)Statement of John George Collins dated 11 November 2003, exhibit 2;

(c)Copy of Post Operative Instructions, exhibit 3.

5.      The following facts are not in dispute and the Tribunal finds as follows:

(a)Mr. Collins was born on 30 June 1928 and is currently 76 years of age.

(b)Mr. Collins served in the Australian Army from 12 March 1946 until 8 April 1948.  From 25 July 1947 until 9 March 1948, he served with the British Commonwealth Occupation Force in Japan.  The whole of his service constitutes operational service.

(c)Mr. Collins arrived in Kure on 25 July 1947.  He was assigned to 14 Works and Parks Company based in Hiroshima.  He operated a bull-dozer.  His job was to demolish bomb damaged buildings and prepare sites for redevelopment.  During the whole of his time in Japan he worked in the Hiroshima Prefecture.

(d)Mr. Collins left Kure by ship on 9 March 1948.

(e)He arrived in Sydney on 22 March 1948.

(f)He was discharged “Termination of Engagement” on 8 April 1948.

6.      Mr. Collins has the following disabilities which have been accepted by the Respondent as war-caused:

(a)Post Traumatic Stress Disorder

(b)Bilateral Sensorineural Hearing Loss with Tinnitus

(c)Other specified Gastritis (without mention of haemorrhage)

(d)Chronic Solar Skin Damage with Malignant change to unspecified sites

(e)Cervical spondylosis

(f)Chronic Bronchitis and Emphysema.

7.      Mr. Collins receives free medical treatment for PV and squamous cell carcinoma, notwithstanding that they have not been accepted as war-caused diseases.

8.      Mr. Collins currently receives disability pension at 100% of the General Rate, plus the Extreme Disablement Adjustment.  The result of this case has no bearing on the payment of his medical expenses, nor on the rate of his pension.

9.      Mr. Collins provided a written statement and gave oral evidence to the Tribunal.  He said (among other things):

(a)The work that he did in Hiroshima was dusty and hot.  He was exposed to a fine brown dust which covered his face, clothing and food.  He believed that he also breathed in some of the brown dust each day.

(b)He was in good health until he went to Japan.

(c)In Japan he suffered from poor health.  In October 1947 he began to suffer nose bleeds and he developed a rash over the trunk of his body.  By November 1947 he began to pass blood in his urine and lost weight for no apparent reason.

(d)He was treated by the Army doctors and had a cystoscopy.  He was ordered to convalesce for a further month for the purpose of restoring his weight and fitness.

(e)When he returned to his unit, he was ordered to the spare parts section of the unit until he was discharged.

(f)He believes that since he was discharged from the Army he has never been well and that his exposure to radiation in Hiroshima caused his condition of polycythaemia vera.

10.     Mr. Collins underwent a “Medical Examination Prior to Discharge” on 30 March 1948.  It was noted that he had had pyelitis of the kidney whilst in Japan and that he had a troublesome cough.  Otherwise everything was normal.

11.     Mr. Collins was diagnosed with PV in December 1986.  At that time he said that he had been experiencing tiredness, dizziness and lethargy for about 18 months to two years.

12.     Mr. Collins relies very heavily on the report of Dr. Bernshaw, dated 27 October 1995, in which Dr. Bernshaw said:

“It is my opinion that Mr. Collins suffers from polycythaemia rubra vera.  There is evidence that it is undergoing sequential change, that he is developing myelofibrosis and that a splenectomy is being considered.

There is no known curative treatment for this condition and if he develops an acute form of myeloid leukaemia will be treated palliatively.  His expected life period is thereby shortened.  He also has basal cell carcinoma and his major exposure to the sun was during his army service and for a short period after.  I believe his exposure may well have been contributory to the development of skin cancer.

It is my strong opinion that he has been exposed to a higher than reasonable amount of radio-active material by virtue of consuming foods produced locally in Japan and caught from Hiroshima Bay some 22 to 30 months after the bomb blast.  It is my opinion that he both obtained radioactive material and was contaminated by radioactive dust at ground zero site in a manner which would not have occurred had he not been in Japan.  It is thus my opinion that there is a reasonable hypothesis in this man’s case that he has consumed radioactive heavy metals associated with production from the atomic bomb blast at Hiroshima and residual in the dirt and materials at the bomb site and in the Hiroshima Bay area in aquatic animals and sea weed and in locally grown vegetables and that this exposure is greater than he would have experienced had he remained in Australia or at some other site.  He was also exposed to petrochemicals including possibly benzine and while this is known to induce abnormal genetic changes leading to myeloid leukaemia it may well have also had a contributory role in the eventual development of his myelo-proliferative disorder.  I am unaware as to whether tobacco smoking can induce these changes but it is my opinion that circulating tars are carcinogenic and may have also augmented the likelihood of developing some genetic abnormality in this man’s situation.

There is no family history of cancer whatsoever and it would appear that his family lived for very long periods.  This would suggest that there is no inherent genetic predisposition to either myelo-proliferative or malignant disorders.  Accordingly, I believe there is a reasonable hypothesis to be made that the conditions of his service in the armed forces has contributed to his development of polycythaemia rubra vera and that there is a high likelihood that this will terminate in some form of malignant myelo-proliferative disorder and take his life.”

13.     Dr. Bernshaw also gave oral evidence to the Tribunal.  He explained that radiation may lead to damage in the nuclear material in body cells which leads to an error in the translation/copy of DNA – a mutation.  After a time, damage occurs.  It is an evolving process.  A mutation may give rise to a malignancy.  It is not possible to say how long it could take for a malignancy to evolve.  It could be five years or it could be 40 years.

14.     There was also a considerable body of medical opinion placed before the Tribunal to indicate that the sound medical–scientific evidence did not currently identify any factor for the clinical onset of PV.  There is no factor which can be related to the onset of PV.

15.     Mr. Collins has suffered from skin rashes and itches for many years.  Dr. Bernshaw thought that the skin itch and Mr. Collins’ nasal problems were probably due to an allergy.  Dr. Coates gave evidence that Mr. Collins’ dermatological problems could have been PV in retrospect but it would be impossible to say whether an itch was from PV or exposure to sunlight or allergy agents.

16.     Mr. Collins seems to have had more serious concerns about itching, rashes and pruritis since about 1970.

17.     Mr. Collins rendered “operational service”.  Consequently, the standard of proof to be applied in considering his claim under the Act in respect of a disease which is said to be war-caused is that provided in s.120(1) of the Act.  It provides:

“(1)  Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”

Section 120(3) then provides:

“(3)  In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)       that the disease was a war-caused disease or a defence-caused disease;  or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”

A note to each of those sub-sections remarks that the sub-section is affected by s.120A.

Section 120A applies to Mr. Collins’ claim because it was made after 1 June 1994, and is a claim under Part II of the Act that relates to operational service rendered by a veteran.  Section 120A(3) provides:

“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B(2) or (11);  or

(b)       a determination of the Commission under subsection 180A(2);

That upholds the hypothesis”

18.     Pursuant to s.196B, the Repatriation Medical Authority has determined a Statement of Principles (SoP) in respect of the condition polycythaemia vera.  The SoP relevant to Mr. Collins’ case is No. 78 of 1999 as amended by No. 11 of 2001.

19.     The material placed before the Tribunal raises an hypothesis connecting Mr. Collins’ PV with circumstances of his service.   The hypothesis is as follows:

(a)In 1945 the city of Hiroshima was struck by an atomic bomb.

(b)The atomic bomb left a residue of radioactive material in the city.

(c)In 1947/48, Mr. Collins was stationed in the city.  His job was to demolish bombed buildings and to prepare building sites for the rebuilding of the city.

(d)During the course of his work, Mr. Collins came into contact with brown dust which was probably contaminated with radioactive material.

(e)The radioactive material gave off radiation which damaged some of the cells in his body.

(f)Over the course of the following 20 to 30 years, mutations occurred in the nuclear substance in some of his body cells which led to his blood condition of PV, which at first manifested itself in severe itching in about 1970.  The PV progressively became worse until it was diagnosed in 1986.

20.     The relevant parts of the SoP as amended are:

“3.After examining the available sound medical-scientific evidence the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that the only factor that may be related to the cause of or material contribution to or aggravation of polycythaemia vera or death from polycythaemia vera and which can be related to relevant service is that set out in clause 4.

4.The factor that must as a minimum exist in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating polycythaemia vera or death from polycythaemia vera is inability to obtain appropriate clinical management for polycythaemia vera.”

21.     The Repatriation Medical Authority does not take the view that radiation from radioactive residue is a cause of PV.  The hypothesis that Mr. Collins’ PV was caused by radiation from the atomic bomb residue in Hiroshima is not reasonable.

22.     The material placed before the Tribunal does not raise any hypothesis that Mr. Collins suffered from PV while he was in the Army.  Even if he did suffer from PV while he was in the Army, he did not know about it;  the Army medical staff did not know about it – nor could it be said that they should have known about it.  There is no material before the Tribunal about what would amount to appropriate treatment.  There is no material which suggests that if Mr. Collins had had whatever was appropriate, he would not be as bad now as he is.

23.     There is no hypothesis linking Mr. Collins’ PV with the circumstances of his service.

24.     The Tribunal affirms the decision to refuse the claim that the polycythaemia vera suffered by John George Collins is war-caused.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Dr. K.P. Kennedy, Member

Signed:         .....................................................................................
C. O’Donovan, Associate

Date/s of Hearing   19 February 2004
Date of Decision   31 May 2004
Solicitor for the Applicant           Mr. W. Cusack
Counsel for the Respondent     Ms. E. Ford
Solicitor for the Respondent      Australian Government Solicitor