Constance Creffield and Repatriation Commission
[2013] AATA 248
[2013] AATA 248
Division Veterans' Appeals Division File Number
2012/5510
Re
Constance Creffield
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 24 April 2013 Place Brisbane (heard in Townsville) The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Operational service – Carcinoma of the jejunum – Statement of principles – Reasonable hypothesis connecting death with operational service – Decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1986
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Creffield and Repatriation Commission [2010] AATA 418
SECONDARY MATERIALS
Statement of Principles No. 40 of 2004
Statement of Principles No. 19 of 2010
REASONS FOR DECISION
Senior Member Bernard J McCabe
Mr Norman Creffield served with the RAAF in the Pacific islands during World War II. He died on 19 September 1995. The death certificate identified cancer of the jejunum as the ultimate cause of death. The jejunum is found in the small intestine, and cancer of the jejunum is very rare. Mrs Creffield says her late husband’s death was related to his service and has applied for a widow’s pension.
Mrs Creffield has made a number of unsuccessful applications for a pension. The decision to reject her last claim was affirmed by the Tribunal in Creffield and Repatriation Commission [2010] AATA 418. She provided some extra information in connection with this application and she hoped this would cause the decision-makers to see things her way.
Unfortunately for Mrs Creffield, her claim for a pension cannot succeed. I explain my reasons below.
FACTS
Mr Creffield served in the RAAF between 12 April 1943 and 14 March 1946. His service qualifies as operational service. He was deployed overseas, and spent time on one or more Pacific islands. There is no doubt the conditions on these islands were very primitive. There is no reason to doubt Mr Creffield consumed military rations that would horrify a nutritionist in this day and age, although Mr Williams, for the Repatriation Commission, pointed out the military took steps to improve the quality of rations later in the war. There is also no doubt Mr Creffield returned home with digestion problems that plagued him for the rest of his life.
I heard evidence from Mrs Creffield that her late husband had been diagnosed with an accepted condition called “functional dyspepsia” not long after he returned home from the war. The records are unclear on this point, but there is no doubt the late veteran suffered from persistent problems with his bowels. I note the Commission accepted his duodenal ulcer, reactive depression and chronic otitis externa (also known as “swimmer’s ear”) were war-caused diseases.
Mrs Creffield said her late husband managed his digestion problems through diet (he was very careful about what he ate) but the problems persisted throughout his life. She said his last year was particularly difficult. He finally succumbed on 19 September 1995. The death certificate identified renal failure and a secondary tumour in the bladder, with the primary carcinoma in the jejunum.
It follows that the kind of death the veteran experienced was cancer of the jejunum.
The Repatriation Commission has published a Statement of Principles (“SoP”) that addresses cancers of the jejunum. The SoP in question is No 40 of 2004 (amended by No 19 of 2010) which relates to malignant neoplasm of the small intestine. There is no doubt cancers of the jejunum are covered by the SoP: clause [2] specifically refers to the jejunum.
The provisions of the Veterans Entitlements Act 1986 require that an applicant must establish a reasonable hypothesis connecting the condition in question with the circumstances of his or her service. The SoP sets out an exhaustive list of factors that are thought to be capable of establishing a connection between the condition and service. If an applicant can identify one or more factors as being applicable on the facts of his or her case, the claim can proceed. If he or she is unable to identify a factor that applies, the claim must fail.
The SoP in this case identifies a number of factors that clearly do not apply to Mrs Creffield’s claim. There is no suggestion her late husband suffered from Crohn’s disease or coeliac disease, for example. It was agreed the only factor in the SoP that might be engaged is 5(c), which refers to:
“having an adenoma of the small intestine before the clinical onset of malignant neoplasm of the small intestine.”
It turns out the medical evidence establishes Mr Creffield did have an adenoma of the small intestine. The adenocarcinoma was discovered in 1993 (exhibit one at p 318). The existence of that condition was not drawn to the attention of the Tribunal when it made its decision in 2010, but Mrs Creffield has brought it to the Tribunal’s attention now.
Having identified that cancer of the jejunum can be causally linked (for the purposes of the SoP, at least) to adenoma of the small intestine, I must then consider whether there is any hypothesis connecting adenoma of the small intestine to the circumstances of Mr Creffield’s service. Mr Williams pointed out there is no SoP relating to adenoma of the small intestine – perhaps because these cancers are so rare. In the absence of an SoP, we fall back on the approach discussed in cases like Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 that pre-date the SoP regime.
In summary, those cases say an applicant’s hypothesis will be reasonable if it is not shown to be contrary to proved scientific facts, obviously fanciful or too remote or too tenuous (Bushell at 414). In other words, the standard is comparatively low: one is not required to establish the existence of a clear consensus amongst the medical or scientific community in favour of a link. A claim might still succeed where medical experts disagree.
Mrs Creffield is in no doubt about the source of her husband’s problems. She said he came back from the war with intestinal problems that lasted for the rest of his life. She assumed it was the poor diet, but she also referred to stress, malaria medication, and possible exposure to other chemical agents during the course of his service. She referred me to a wealth of material she has gathered over the years from her research into links between environmental factors and ill-health. She also recounted comments made to her by various doctors.
Mrs Creffield conceded during the course of the hearing that she was not aware of any specific evidence that linked any particular aspect of her husband’s service (whether it was food, or chemical exposure, or stress, or the side-effects of malaria medication) to the development of either cancer of the jejunum or adenoma of the small intestine. That is unsurprising, given these cancers are rare and they have not been the subject of extensive epidemiological study. For her, the claim is more one of common sense: Mr Creffield experienced intestinal problems during the war and – like many other veterans – came home with long-term intestinal complaints. He subsequently died of a cancer of the small intestine. She said it stands to reason his death is related to his service. What else could it be, she asked?
The Commission’s principal witness was Professor O’Rourke. He is an eminent cancer specialist and researcher. He provided a report (exhibit one at p 399) and gave evidence at the hearing. He explained he had been researching cancers and their causes for over 35 years. He candidly acknowledged there was a great deal we did not know about cancer; that was especially true of the cancers in question here which are very rare. He agreed Crohn’s disease appeared to be a factor in the cause of the cancers in question, and at least one other genetic condition might also play a role – but none of that was relevant here. He insisted there was no evidence to support a claim that Mr Creffield’s long term intestinal problems or any aspect of his service contributed to the development of the cancers.
Professor O’Rourke’s evidence was clear. He was not aware of any basis for linking the circumstances of Mr Creffield’s service with the cancers that afflicted him at the end of his life.
I accept Professor O’Rourke’s expert evidence. He is an eminent and well-qualified witness. He explained his opinion clearly. It was obviously the product of careful research. He was not dogmatic in his views; to the contrary, he acknowledged mysteries cloud our understanding of cancer. I accept his views accurately state the consensus of the scientific-medical community.
That finding on its own is not necessarily fatal to Mrs Creffield’s claim, given the generous standard of proof established by the legislation and discussed in Byrne and Bushell. If she were able to identify some specific evidence that supported her hypothesis linking circumstances of her husband’s service with the development of adenoma of the small intestine, she might succeed. It would be helpful if she were able to refer to a credible medical expert who gave her some specific support linking specific conditions of service to the specific cancer in question (as opposed to the expressions of general support and speculation). If that sort of evidence exists, it has not been produced – and was unlikely to be available from a credible source according to Professor O’Rourke.
CONCLUSION
Mrs Creffield’s late husband died as a result of cancer of the jejunum. There is no material before the Tribunal that would support a hypothesis linking that condition directly to the circumstances of his service. While there is material linking the cancer of the jejunum with an adenoma of the small intestine, there is no material that links the adenoma with the late veteran’s services. One may speculate and wonder about the existence of such a link, but there is simply no evidence. In those circumstances, the applicant’s claim for a pension must fail. The decision under review is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ........................................................................
Associate
Dated 24 April 2013
Date of hearing 27 March 2013 Date final submissions received 14 March 2013 Applicant In person Advocate for the Respondent Bruce Williams
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