Cooper and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2022] AATA 2893
•31 August 2022
Cooper and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 2893 (31 August 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2020/3409
Re:Liam Cooper
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:31 August 2022
Place:Brisbane
The Tribunal affirms the decision under review.
..............................[SGD]...................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – claim for acceptance of liability – non-Hodgkin lymphoma – warlike and non-warlike service – whether service disease – claiming due to exposure to numerous hazards while serving, especially in Afghanistan – claiming exposure to benzene and ionising radiation – claiming due to chronic inflammation as a result of previous hernia repair surgery – claim for acceptance of liability for chronic rhinosinusitis and bilateral blepharitis resulting from treatment of non-Hodgkin lymphoma – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning Non-Hodgkin Lymphoma
(Reasonable Hypothesis)
No. 90 of 2018 (as amended) (Cth)
CASES
Australian Pastoral Holdings v New South Wales Taxation (1983) 1 NSWLR 1; (1983) 70 FLR 447
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
Duff and Repatriation Commission [2017] AATA 1405
Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1
Hunt v Repatriation Commission [2019] FCA 1191; (2019) 166 ALD 321
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
Stevens v Repatriation Commission [2018] FCA 1866
REASONS FOR DECISION
Member D Mitchell
31 August 2022
Mr Liam Cooper (the Veteran) made claims for acceptance of liability in relation to
non-Hodgkin lymphoma,[1] blepharitis[2] and nasal polyposis[3] dated 14 March 2018.[1] Exhibit 1, T Documents, T55, pages 119-123, Initial liability claim: non-Hodgkin lymphoma.
[2] Exhibit 1, T Documents, T54, pages 115-118, Initial liability claim: bilateral blepharitis.
[3] Exhibit 1, T Documents, T53, pages 111-114, Initial liability claim: nasal polyposis.
On 27 June 2018, the Respondent, amongst other things, accepted the Veteran’s claim for liability for non-Hodgkin’s lymphoma, bilateral blepharitis and chronic rhinosinusitis.[4]
[4] Exhibit 1, T Documents, T62, pages 140-148, Determination of liability.
On 2 July 2019, the Respondent reviewed that determination on its own motion and revoked the determination in so far as it accepted liability for non-Hodgkin’s lymphoma, bilateral blepharitis and chronic rhinosinusitis.[5]
[5] Exhibit 1, T Documents, T90, pages 241-245, Determination to revoke determination of 27 June 2018 as it related to non-Hodgkin lymphoma, bilateral blepharitis and chronic rhinosinusitis.
The Veteran sought review of that determination.[6]
[6] Exhibit 1, T Documents, T95, pages 264-266, Request for review.
On 5 May 2020, the Veterans’ Review Board (VRB) affirmed the Respondent’s determination of 2 July 2019.[7]
[7] Exhibit 1, T Documents, T104, pages 317-327, Decision of the VRB.
On 2 June 2020, the Veteran made an application for review of the VRB decision to the Tribunal.[8]
[8] Exhibit 1, T Documents, T2, pages 3-5, Application for Review of Decision.
background
The Veteran joined the Australian Army Reserves on 18 October 1997 and transferred to the Australian Regular Army on 2 June 1999,[9] he served until he was discharged on
17 July 2019 on medical grounds.[10]
[9] Exhibit 1, T Documents, T46, page 101, Statement of the Veteran – Claim for non-Hodgkin lymphoma.
[10] Exhibit 1, T Documents, T111, pages 342-343, ADO Service Record.
The Veteran undertook periods of peacetime, warlike and non-warlike service which included multiple deployments to East Timor, Iraq and Afghanistan.[11] Those deployments included:[12]
[11] Exhibit 1, T Documents, T110, pages 338-340, VRB Summary.
[12] Exhibit 1, T Documents, T110, page 338-339, VRB Summary.
·31/10/2003 to 28/02/2004 – East Timor
·24/8/2006 to12/10/2006 – Iraq
·8/01/2007 to 31/01/2007 – East Timor
·11/07/2007 to 17/10/2007 – Afghanistan
·9/01/2008 to 12/03/2008 – Iraq
·3/09/2008 to 16/10/2008 – Afghanistan
·5/11/2008 to 17/12/2008 – Iraq
·09/07/2010 to 11/12/2010 – Afghanistan
·25/01/2012 to 1/08/2012 - Afghanistan
The Veteran has a number of conditions accepted in relation to his defence service.[13] The conditions to which the matter before the Tribunal relates are non-Hodgkin lymphoma, bilateral blepharitis and chronic rhinosinusitis.
[13] Exhibit 1, T Documents, T110, pages 340-341, VRB Summary.
On 14 March 2018, the Veteran made a claim for liability in relation to non-Hodgkin lymphoma,[14] providing the following basis for the claim:[15]
During my career in the armed forces I have been exposed to potential carcinogens. I was required to solder frequently and was exposed to lead and manganese. I repaired cables, connecters and circuit boards. There was exposure to dust and fibres such as asbestos as I would have to run cables in roofs and sweep dust out of old buildings and repair or modify buildings that supported communication facilities. There was a significant amount of dust and fumes in both my role at home and while on deployment or exercises. A number of other chemical exposures included cleaners, oils, detergents, lubricants, degreasers, flux for soldering and diesel and petrol exposures. Exposure occurred during normal duties such as refuelling, maintaining and cleaning or repairing equipment. I also have had exposure to metals, such as beryllium, mercury and other metals in my occupation e.g. soldering. I was exposed to aviation fumes as well as diesel exhaust fumes.
I have also had exposure to radiofrequencys. In the Signal corp and while on deployment, it was not uncommon to be exposed to higher levels of radiofrequency than when in more controlled environments. There have been a number of cancers noted in the Signal corp and many are unexplained.
[14] Exhibit 1, T Documents, T55, page 121, Initial liability claim: non-Hodgkin lymphoma.
[15] Exhibit 1, T Documents, T55, page 121, Initial liability claim: non-Hodgkin lymphoma.
The Veteran provided a statement that further outlined the symptoms and treatment to date of his non-Hodgkin lymphoma.[16]
[16] Exhibit 1, T Documents, T46, page 101, Initial liability claim: non-Hodgkin lymphoma.
On 14 March 2018, the Veteran made a claim for liability in relation to blepharitis and nasal polyposis on the basis that he had developed these conditions as a result of his cancer treatment.[17] The Veteran provided statements outlining the symptoms and treatment of those conditions.[18]
[17] Exhibit 1, T Documents, T53, Initial liability claim: nasal polyposis and T54, Initial liability claim: blepharitis.
[18] Exhibit 1, T Documents, T47, page 102, Statement of Applicant: blepharitis and T48, page 103, Statement of Applicant: polyposis.
On 27 June 2018, the Respondent, amongst other things, accepted the Veteran’s claim for liability for:[19]
(a)non-Hodgkin’s lymphoma with effect from 1 July 2013;
(b)bilateral blepharitis with effect from 19 June 2017; and
(c)chronic rhinosinusitis with effect from 7 February 2018.
[19] Exhibit 1, T Documents, T62, pages 140-148, Determination of liability.
On 14 February 2019, the Department of Defence responded to a request for information in relation to the Veteran’s potential exposure to benzene during his Australian Defence Force (ADF) employment by providing the following:[20]
In order to respond to this RFI, Defence sought advice from staff at the Joint Fuels Branch of Joint Logistics Command.
Defence’s ability to measure exposure to Benzene, indeed Industry’s ability to properly measure an individual’s exposure to Benzene, is a difficult task. There are many variables and considerations that are at play to be able to state whether an individuals’ exposure to a particular substance can be classified as safe or unsafe.
In the case of the subject member, noting the member is in the RASIGS corps, it is highly likely his rate of exposure to Benzene would be NO LESS and NO MORE than the average rate of exposure of any person, civilian or military, refilling their motor vehicle fuel tank with unleaded petrol. There is nothing in the members trade profile that provides him with greater risk of, or actual, exposure to fuel products and other products that might contain Benzene. It should also be noted the major sources of benzene exposure are tobacco smoke, automobile service stations, exhaust from motor vehicles and industrial emissions (source: Wikipedia,
To reiterate; there is nothing in the members trade or career profile that would suggest his risk of, or exposure to, benzene is any greater than the average person.
[20] Exhibit 1, T Documents, T80, page 210, Defence SAM Advice.
On 2 July 2019, the Respondent reviewed on its own motion, the determination of
27 June 2018 and revoked the determination in so far as it accepted liability fornon-Hodgkin’s lymphoma, bilateral blepharitis and chronic rhinosinusitis.[21][21] Exhibit 1, T Documents, T90, pages 241-245, Determination to revoke determination of 27 June 2018 as it related to non-Hodgkin lymphoma, bilateral blepharitis and chronic rhinosinusitis.
The review officer considered that the level of the Veteran’s exposure to benzene required to satisfy the factor within the non-Hodgkin lymphoma Statement of Principles was not met and as such, a causative link could not be established between the development of the claimed condition and the Veteran’s service. As a consequence, the review officer further found that liability could not be accepted for the Veteran’s bilateral blepharitis and chronic rhinosinusitis conditions as they developed as a result of his non-Hodgkin lymphoma.[22]
[22] Exhibit 1, T Documents, T90, pages 244-245, Determination to revoke determination of 27 June 2018 as it related to non-Hodgkin lymphoma, bilateral blepharitis and chronic rhinosinusitis.
On 9 October 2019, the Veteran sought review of the determination dated 2 July 2019.[23]
[23] Exhibit 1, T Documents, T95, pages 264-266, Request for review.
On 5 May 2020, the VRB affirmed the Respondent’s determination of 2 July 2019.[24]
[24] Exhibit 1, T Documents, T104, pages 317-327, Decision of the VRB.
On 2 June 2020, the Veteran made an application for review of the VRB decision to the Tribunal[25] on the basis that he believes that the condition of non-Hodgkin lymphoma is related to his service with the other conditions being sequelae conditions due to the radiation treatment he underwent in relation to his non-Hodgkin lymphoma.[26]
[25] Exhibit 1, T Documents, T2, pages 3-5, Application for Review of Decision.
[26] Exhibit 1, T Documents, T2, page 4, Application for Review of Decision.
In a statement dated 8 September 2020, the Veteran provided a statement in support of his application, which outlined:[27]
[27] Exhibit 3, Joint Hearing Bundle, A1, pages 1-2, Applicant statement dated 08 September2020.
I have served for 20 years in the army and during that time I have been deployed overseas approximately eight times. During my time working domestically and internationally, I was exposed to carcinogens that can potentially cause cancer on many occasions.
Some of these were known to be toxic at the time. Others were not. One example of a previously unidentified carcinogen which I was frequently exposed to during my career is desiccant.
The desiccant used to remove moisture from wave guides in communications equipment which I repeatedly used has now been found to be carcinogenic, as well as parts of the casing on the CTRS portable satellite terminals. At the time, we were not warned that this could be toxic and therefore I did not take appropriate precautions when using it.
In addition, throughout my career I have been exposed to diesel fumes as a result of generators and vehicles running in close proximity. I was also responsible for the refilling and maintenance of diesel equipment.
I also had a long stint of approximately two years working within a faraday cage where no signals can get in or out. To achieve this, the seals are lined with beryllium which is highly toxic. Though there are warning signs about the dangers of beryllium, contact is inevitable when entering and leaving several times throughout the day.
During deployments to Timor, Afghanistan and Iraq there were times when I was exposed to carcinogens in the way of fogging which took place in the mornings and afternoons. Because I was working shift, I was usually asleep in the area and therefore I had no chance to escape from exposure. In addition, uniform dipping was conducted, and I have also been exposed to glyphosate during my career while conducting maintenance of remote sites.
In Afghanistan I was working in a bomb proof demountable room on a daily basis where I was fixing electronic equipment, which included conducting soldering work. However, there was little ventilation and no extraction for fumes from the soldering work. I was also using contact cleaner substances and lubricants which required ventilation. We also had the black smoke from the burn pits drifting through the work site frequently, none of which could be ventilated from the room.
During my time in Afghanistan I also conducted installation and maintenance of cabling and communications equipment at various sites, including crawling underneath buildings and often felt ill for a few days afterwards. I believe that underneath the buildings had been contaminated with toxic substances which may have resulted in illness and inflammation.
During my deployment to Afghanistan in 2010 I had an injury lifting heavy trunks which caused chronic pain. At the time the cause of the pain was unknown. A couple months after that deployment I was finally diagnosed with double inguinal hernias. This was repaired through surgery in 2011 using surgical mesh. I must have slipped through the medical system cracks during that time period as I was not medical down-graded at all and I was back at work after 1 week off. Since the time the mesh was inserted, I had intermittent pain around that area which I attributed to the mesh and the surgery. I have since learnt that this was caused by chronic inflammation as a result of the body attacking healthy tissue in an attempt to reject the mesh which it identified as a foreign intruder. The tumour formed in the area that the mesh had been inserted. As evidence of this, the surgeons used the scar from the hernia operation to make the insertion for the initial operation to remove the tumour. This suggests that the tumour formed close to, if not around, the mesh. This is in line with the Statement of Principles concerning non-Hodgkin's lymphoma as stated in para 9 (25).
………..
On 19 October 2020, the Veteran provided a statement with regards to his symptoms following his bilateral inguinal hernia together with information in relation to his hernia mesh complications.[28] The Veteran provided:[29]
During the years following surgery for the bilateral ingruinal hernia, I suffered pain associated with the mesh implant in my abdominal and lower back areas.
It was, and still is, pain I attributed to chronic inflammation in the abdominal area associated with the mesh implant.
I frequently took NSAIDs (anti-inflammatory medication – voltaren rapid, osteoeze and nurofen). These were over the counter medications, which I took regularly to relieve the symptoms in my abdominal and lower back.
At the time it was generally discouraged to go to the RAP as it was considered a sign of weakness and only malingerers would frequent the facility.
I continue to suffer this pain and inflammation.
[28] Exhibit 3, Joint Hearing Bundle, A3, page 5, Applicant statement dated 19 December 2020.
[29] Exhibit 3, Joint Hearing Bundle, A3, page 5, Applicant statement dated 19 December 2020.
On 23 December 2020, the Department of Defence responded to a request for information[30] in relation to the Veteran’s potential exposure to other chemicals, ethylene oxide vapour or ionising radiation during his ADF employment by providing the following:[31]
[30] Exhibit 2, Supplementary T Documents, ST1, pages 1-2, DVA Request for Information.
[31] Exhibit 2, Supplementary T Documents, ST2, pages 3-4, Defence SAM Response.
Defence is unable to provide details as to how he was exposed (ie whether he had cutaneous contact, inhaled, sprayed, etc), the cumulative exposure (ie how many hours across how long of a period), and where he was exposed (ie 'only when on a particular job', or 'only when deployed'). The members medical records may contain information on possible exposure, in particular during his deployments.
In general terms, the member would have been regularly exposed to a range of hazards. The potential consequences from exposure may cause serious or prolonged injury. The hazards of this employment are:
Non-combat. During non-combatant operations, duties undertaken are very similar to those undertaken during conflict. The hazards listed below are increased during times of restricted visibility or in darkness, these are:
(1) death or injury due to electric shock
(2) risk of electromagnetic radiation hazard (RADHAZ) contamination
(3) eye strain and sight degradation due to working with video display units screens under red or less than optimum light conditions when deployed
(4) impaired hearing due to exposure to loud noises
(5) environmental hazards from exposure to some flora and fauna
(6) exposure to climatic conditions while completing outdoor employment.
Combat. During combatant operations, is subject to similar combat hazards as other soldiers in the unit in which they serve or support. The range of combat environments is from forward combat and Special Forces Communication areas through to deployed logistics and lines of communication areas. All work detachments are responsible for their own defence and the defence of the unit served or supported with all associated combat risks. Hazards include direct and indirect enemy fire, IED attack, air attack and attacks on naval surface vessels when deployed. Non-combat hazards are intensified in combat.
Issues
The issue before the Tribunal is whether liability exists under section 23(1) of the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act) for the Veteran’s claimed conditions of non-Hodgkin lymphoma, chronic rhinosinusitis and bilateral blepharitis.
In considering this issue, the Tribunal notes that there is no dispute that the Veteran’s
non-Hodgkin lymphoma condition was appropriately diagnosed[32] with a clinical onset of late June or early July 2016,[33] noting the operation report of Dr William Braun, surgeon dated6 July 2016.[34] Based on the evidence before it, the Tribunal accepts this diagnosis and date of onset.[32] Exhibit 3, Joint Hearing Bundle, R1, page 44, paragraph 4.8, Respondent’s Statement of Issues, Facts and Contentions.
[33] Exhibit 1, T Documents, T112, pages 1265-1266, Service Medical Records.
[34] Exhibit 1, T Documents, T8, page 24, Occupational Rehabilitation Services Monthly Executive Summary.
Further, there is no dispute that the Veteran’s conditions of chronic rhinosinusitis and bilateral blepharitis were appropriately diagnosed with clinical onsets of 7 February 2018 and 19 June 2017[35] respectively and that these conditions are sequelae conditions caused by the treatment of the Veteran’s non-Hodgkin lymphoma condition.[36] Based on the evidence before it, the Tribunal accepts these diagnoses and respective dates of onset.
[35] Exhibit 1, T Documents, T90, page 241, Determination to revoke determination of 27 June 2018 as it related to non-Hodgkin lymphoma, bilateral blepharitis and chronic rhinosinusitis.
[36] Exhibit 3, Joint Hearing Bundle, R1, page 44, paragraph 4.8, Respondent’s Statement of Issues, Facts and Contentions; R2, page 49, paragraph 1.3, Respondent’s Outline of Reply; Transcript of 1 September 2021, page 5.
The Respondent does not dispute that if liability exists for the Veteran’s non-Hodgkin lymphoma, liability would consequently be established under section 23(2) of the MRC Act for his chronic rhinosinusitis and bilateral blepharitis conditions on the basis that they arose as a consequence of treatment for that condition.[37] Based on the evidence before it, the Tribunal agrees with that view.
[37] Exhibit 3, Joint Hearing Bundle, R2, page 49, paragraph 1.4, Respondent’s Outline of Reply.
Consequently, to determine the remaining issues before it, the Tribunal must consider:
(a)Whether the Veteran’s non-Hodgkin lymphoma condition was the result of warlike or non-warlike service or peacetime service; and
(b)What is the applicable standard of proof under section 335 of the MRC Act; and
(c)Whether there is an applicable Statement of Principles (SOP); and
(d)If so, whether section 338 of the MRC Act is satisfied.
legislative overview
The MRC Act applies in relation to the Veteran’s application as it relates to his service in the ADF on or after 1 July 2004.[38]
[38] Section 2(1) of the MRC Act.
The MRC Act applies to warlike service, non-warlike service and peacetime service which are collectively referred to as defence service.[39]
[39] Section 6(1) of the MRC Act.
Section 23(1) of the MRC Act provides that the Respondent must accept liability for an injury sustained or a disease contracted by a person if the person’s injury or disease is a service injury or disease under section 27 of the MRC Act, the Respondent is not prevented from accepting liability by Part 4 of the MRC Act and a claim for liability has been made under section 319 of the MRC Act.
It is uncontroversial that the Veteran’s non-Hodgkin lymphoma is considered to be a disease for the purpose of the MRC Act.
Relevantly, section 27 of the MRC Act provides that an injury sustained or a disease contracted by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Respondent;
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member.
Claims for acceptance of liability for a service related injury or disease and determination of such claims are governed by Chapter 7 of the MRC Act. Reconsideration and review of such determinations are governed by Chapter 8 of the MRC Act.
Specifically, section 335 of the MRC Act relevantly outlines the standard of proof to be applied when considering claims for acceptance of liability as follows:
Standard of proof for claims relating to warlike or non‑warlike service
(1) If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person’s injury, disease or death relates to warlike or non‑warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2) In applying subsection (1) in respect of a person’s injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury is a service injury; or
(b) that the disease is a service disease; or
(c) that the death is a service death;
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 while a member.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
Other determinations to be made to its reasonable satisfaction
(3) Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.
[Emphasis added]
It is not disputed that the Veteran rendered warlike and non-warlike service. The Tribunal notes that the Veteran also rendered peacetime service. The Veteran did not advance any contentions before the Tribunal that his non-Hodgkin lymphoma was caused by his peacetime service.[40] As such, the Veteran’s peacetime service will not be discussed in this decision, however the Tribunal notes that consideration of his peacetime service would not have changed the outcome of its decision.
[40] The Tribunal notes that the Veteran’s contentions centre around his non-Hodgkin lymphoma having resulted from his service on deployment while rendering warlike and non-warlike service.
Consequently, the standard of proof applicable to determining whether the Veteran’s
non-Hodgkin lymphoma was the result of warlike or non-warlike service is beyond reasonable doubt.
Section 336 of the MRC Act provides that nothing in the MRC Act entitles the Respondent (which equally applies to the Tribunal on review) to presume that:
(a) an injury sustained by a person is a service injury; or
(b) a disease contracted by a person is a service disease; or
(c) the death of a person is a service death; or
(d) a person is entitled to be granted compensation.
Section 337 of the MRC Act outlines that neither the person claiming for the acceptance of liability or the Respondent, the Commonwealth, the Department or any other person in relation to such a claim has the onus of proving any matter that is, or might be, relevant to the determination of the claim.
Section 335 of the MRC Act is affected by section 338 of the MRC Act. Section 338 of the MRC Act applies to claims for acceptance of liability under section 23(1) of the MRC Act for an injury or disease that relates to warlike or non-warlike service.
Section 338(3) of the MRC Act relevantly provides:
(3) For the purposes of subsection 335(2), a hypothesis connecting an injury sustained, or a disease contracted, by a person, or the death of a person, with the circumstances of any particular service rendered by the person while a member, is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11) of the Veterans’ Entitlements Act 1986; or
(b) a determination of the Commission under subsection 340(2) of this Act;
that upholds the hypothesis.
It is not disputed that the relevant Statement of Principles in the present matter is the Statement of Principles concerning non-Hodgkin Lymphoma (Reasonable Hypothesis) No. 90 of 2018 (the non-Hodgkin lymphoma SOP).[41]
[41] Exhibit 3, Joint Hearing Bundle, A4, page 26, Applicant’s Statement of Issues, Facts and Contentions; R1, page 44, paragraph 4.4, Respondent’s Statement of Issues, Facts and Contentions.
Relevantly, section 9 of the non-Hodgkin lymphoma SOP outlines that as a minimum, at least one of the listed factors must exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin lymphoma with the circumstances of a person’s relevant service.
Section 10(1) of the non-Hodgkin lymphoma SOP provides that the existence in a person of any factor referred to in section 9 must be related to the relevant service rendered by the person.
The role and application of SOP is usefully explained in the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
The principles followed in deciding whether a hypothesis is reasonable were established on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) on pages 97 and 98 as follows:
…. the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)...
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit the within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The principles in Deledio have been widely accepted and applied, however with the understanding that they do not apply in substitution of the application of the relevant provisions of the Act.[42]
[42] Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1 at 16-17; Dunlop v Repatriation Commission [2003] FCAFC 201 at [33].
hearing
A Hearing was conducted in relation to the Veteran’s application on 1 September 2021. The Veteran appeared in person and was represented by Mr Ken Cullen, Advocate Level 4, Gaythorne RSL. The Veteran gave evidence under affirmation. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers.
At the outset of the Hearing, Mr Cullen submitted that the Veteran relied on the previously filed Statement of Issues, Facts and Contentions[43] and said that his non-Hodgkin lymphoma is related to his warlike service with the other two conditions being sequelae conditions to that condition.[44]
[43] Exhibit 3, Joint Hearing Bundle, R1, Respondent’s Statement of Issues, Facts and Contentions.
[44] Transcript of 1 September 2021, page 3.
Mr Cullen submitted at the outset of the Hearing that the Applicant sought to rely on the factor set out in section 9(15) of the non-Hodgkin lymphoma SOP in addition to those factors previously outlined on the basis that he was diagnosed with Burkitt lymphoma at the same time as non-Hodgkin lymphoma and had been taking anti-malaria tablets which could have masked him having had malaria.[45]
[45] Transcript of 1 September 2021, page 4.
At the Hearing, Mr Cullen confirmed that the Veteran contended that his non-Hodgkin lymphoma was diagnosed in early July 2016. He further submitted that in relation to the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP, the Veteran was one month short of the five year period and as such, would not strictly meet the factor requirements. However, he contended that it was open to the Tribunal to not strictly apply the time requirement.[46]
[46] Transcript of 1 September 2021, page 4.
Mr Cullen further sought to rely on the case of Allied Pastoral Holdings v New South Wales Taxation (1983) 1 NSWLR 1 as referenced in Hunt v Repatriation Commission [2019] FCA 1191 with regards to credibility of the Veteran and evidence or lack thereof.[47]
[47] Transcript of 1 September 2021, pages 3-7.
The Tribunal considers that at Hearing, the Veteran gave open and honest responses to the questions asked of him. The Veteran willingly explained his role and duties while on deployment and the conditions he experienced during those deployments. In giving evidence, the Veteran:[48]
[48] Transcript of 1 September 2021, pages 8-46.
·Said that he had provided 20 years or more service in the army.
·Said that some of that service was with Special Forces.
·Said he was a communications reader doing tower maintenance using all sorts of sprays and chemicals.
·Said in the deployments he outlined in his written statements, he was sometimes one of the first people on site picking up the ground, pit and piping, putting communications infrastructure in. It was very dusty and “who knows what was in that ground”.
·Said: “You come out covered like talcum powder, dust, that is over there, at the end of the day. Part of my job in Iraq and Afghanistan was – as a communications technician was doing the installation of cables and things under the building where – obviously treated with stuff because we had pests and vermin all the way through them.”
·Said he had a year of having his cancer claim accepted before he developed a major depression disorder and a few other things. There had been a lot of medical issues post chemotherapy that forced him out of service.
·Said: “I tried to get back to work as soon as possible doing all I could, but I ended up failing on that case and like going downhill very quickly.”
·Said a week before he was discharged, he was told that they were taking his cancer claim approval back.
·Said with regards to exposure to things, he had been exposed to a lot of different radiation. He was teaching satellite signals and satellite courses for a long time, which, if you get in front of the actual beam, it is ionising radiation, in satellites so it is a high dose there.
·Said it was not only Australian equipment but multi-nation equipment that could be affecting him on deployment.
·Said burn pits were used in Afghanistan. Everything went into those burn pits including batteries and rubbish so that the enemy could not take it. The smoke would drift over camp Russell which was right next door to the burn pit and he was at the top of the camp where the smoke came straight over. The burn pits were not only for ADF purposes, but they were also multi-national burn pits so Americans, Dutch or whichever force was there at the time used the burn pits.
·When asked what the smoke means from a chemical perspective, said, it was not just white smoke, it was thick black smoke a lot of the time. He would try to get out of the smoke if he could. However, they had to do their jobs, one of which was doing the whole refit of the bushmasters. The bushmasters came over with a blunt shell and he would fit the whole comm system for it when it was over there and because he was working with Special Forces (SF), they have different gear to the rest of the army, so he had to strip everything out and refit it and a lot of that time it was done outside of his building. He was basically on the roof of or in the bushmasters and there was no chance to get inside a building or to escape the smoke when he was doing that job.
·Said he put diesel fumes in his claim because he had been exposed to a lot of diesel fumes, not mainly vehicles, it was generators. Right outside their building, they had one of the camp’s main generators that ran constantly and it was their responsibility to keep fuelling it up and things like that.
·Said in relation to solvents and things like that, he did a lot of bench tech work while he was overseas which involved taking equipment apart and trying to fix it. They had an extraction system in the bomb proof building they were working in, however it did not work properly all the time. You could not say “we’ll wait for that to get fixed before I fix this other bit of equipment that someone’s relying on to go outside. So there were cases there whether we had been working inside and someone walks in and said oh geez, it smells like chemicals in here, I walked outside and it wasn’t until I walked outside that I got dizzy and went oh jeez. You don’t notice it once you’re inside doing the work.”
·Said in relation to the mesh, his hernia happened when he was in Afghanistan and he did not realise it had happened until he got back. He did not get a medical downgrade for that injury. They fixed it and he went back to work within a couple of days, which was not supposed to happen, but “that’s what Special Forces do, you get in there and you get through.”
·Said the mesh caused inflammation for a long time. It was there constantly and on his next deployment to Afghanistan, he had been seeing a physio constantly and getting treatment for inflammation. He put it down to having surgery as that was his first surgery ever, so he thought he would be sore with the mesh. He was taking anti-inflammatories then.
·Said he did not do too much patrolling while on deployment outside the wire but did a lot of testing inside the wire of new stuff.
·Confirmed that the deployment records set out above were correct and said that during some of his Afghanistan deployments, he went between countries which are not listed in the records.
·When taken through the pre-deployment medical checklists and annual health checks or post-deployment medical check documents, confirmed or said that:
oHis recollection was that in 2006 he had no current illnesses.
oHe recalled that before each deployment he had to do a pre-deployment medical checklist.
oThose checklists were done with a medic who was a nurse who would sit down with them and ask them the questions quickly. The medic filled out the forms.
·When taken to documents in relation to his deployment to Afghanistan in 2007, confirmed or said that:
oThe August 2007 record said that he had developed sharp pain in the middle of his back whilst digging trenches and cabling, however he could not remember that.
o
When taken to the psychological screening record completed on
15 October 2007, two days before his deployment in Afghanistan ended and was asked, if he recalled answering “never” to the question asking “You feared that you had been exposed to a contagious disease toxic agent or injury e.g. radioactivity, HIV, chemical warfare”, said that the forms were like “tick and flick” things really. They were doing them quickly at the time and he would have probably said never for everything because he was pretty fit and healthy in those days. It occurred before he was going to go to SF and he did not want to look weak in front of everyone else who was there so he just blanked it. Everyone else did the same answers, so they all ticked and flicked and got out of there quickly.
oIn relation to the Comprehensive Preventive Health Examination report completed at the end of 2007 and in relation to the question “Do you have any specific occupational or workplace exposure hazards or concerns (eg radiation, noise, solvents, etc)”, “Radio Frequencies” was listed as the response and asked if he would like to expand on that response, said that:
What I meant at the time was we were putting up high powered microwave links between us and the Americans and satellite – we were installing satellite terminals and they also had - …… a UHF system at that point of time. That’s going – the system but it’s – basically gives everyone connectivity wireless throughout the camp but it’s all security, like crypto.
oWhile in Afghanistan in 2007, he was a communications technician which meant his duties at that time were installing satellites and establishing all the major satellite links from Afghanistan back to Australia. They did microwave links, all the caballing, all the optical fibre work and anything that links the communications main nodes.
o“If you know, anything about the army, I was a signaller but I wasn’t – I was in signals corp but I was very specialised in the signals corp being at 110 or 127 at the change to, they are the only ones in the army that do this sort of work.”
·Said during his deployment to Iraq at the beginning of 2008, his duties were similar to those outlined in relation to his previous Afghanistan deployment.
·Said in relation to how long it took to do satellite installation, that it would depend on the type of satellite dish he was installing. He could build a three-metre satellite dish in about two weeks, which included pouring a slab of concrete if it was not installed on the roof of a building. Roughly around two weeks for a dish to be installed and they also installed the up down converters and the stuff that sat in the comms rack away from the dish. They engineered it in.
·Said that they also did the cabling through all of the buildings, running fibre and cat five cabling through the infrastructure, drilling through walls and up in roof cavities and things like that. He also fixed installations and worked with fibre optics, doing fusion spicing and fibre optic cabling.
·Said the microwave link work was different to the satellite installation work, it was a separate set of infrastructures. It did not take long to set it up because it was pointing a dish somewhere, set the antenna at another antenna and just get it in – which was all the communication suites. The mounting was fairly easy and the only problem in Iraq was that they did not know what the buildings were made out of and some of the walls they were drilling through were 30 centimetres thick. The cables were installed to provide a radio link or a network system depending on what the microwave link was for. They would usually allow two days to set up the microwave link – one day for each side. Then they would go back and install new upgrades and things like that.
·When referred to a psychological screening report completed after his deployment to Iraq in early 2008, which was similar to that previously completed after his Afghanistan deployment, and if he had an awareness at that point in time or any concern that he had been exposed to a toxic agent or if that was something he learnt of later, said:
Later. The original deployments, everyone was happy to go away, like because we hadn’t been on deployments for a while and it’s like you wanted to get there and you don’t want to start – if you had been exposed, you probably don’t want to say it because you won’t get another deployment then. Like in those days, I was happy to go on deployments, I was single, I was ready to go. Actually getting over and doing your job rather than sitting here and training constantly.
….
I wouldn’t know if I’d been exposed to anything anyway because a lot of those exposures you talk about are invisible, like with regards to radiation or dusting interlay. Like when we originally went to Afghanistan, they put a – the minutes saying this is possible exposure, so he didn’t bother ticking anything, they said yes, you just use this minute and that’s what you have been exposed to. That is what the Australian government accepts.
·When taken to the medical report completed on 10 March 2008, being two days prior to the end of his Iraq deployment said:
oAlthough it was recorded “never” to the exposure to diesel exhaust fumes, that was because when they were filling out those things, the main points were the dust and fibres and things rather than the generator. He did not really think about a generator as having diesel exhaust back in those days.
oThe exposure to dust or fibres on a daily basis related to drilling through walls and digs and roof cavities.
oThe exposure to non-ionising radiation, such as radar or microwave transmitters on a weekly basis and the description “six gear – sat dish” were referring to what he had previously told the Tribunal in relation to satellite dishes and microwave transmitters. When asked what weekly actually meant, confirmed that it depended on what he was installing and what he was doing, it was an average estimate of time and, on some weeks, it might be that he was exposed every day for that week.
oThe exposure to lasers on a daily basis referred to optic fibre work. They put lasers down and you were not meant to look into it, but when you were in the next building you would not know when someone is putting it down.
oNo specialist advice was sought from the directorate of preventative health as was required to be sought where there had been a clear history of high risk exposure to hazardous agents.
·Said during his deployment to Afghanistan in late 2008, he was working with the specialist operations doing the camp comms infrastructure. On this deployment, he switched between two locations. In Kandahar, he was digging trenches and putting in new communication infrastructure in buildings and in TK he was working with the SF people at camp Russell doing their main links back to Australia by then.
·Said during his deployment to Iraq at the end of 2008, his duties included fixing things and they did not have the main satellite link there. He was there doing what ended up being two rocker replacements.
·Said he was not deployed in 2009 as that was when he joined a Special Forces unit and when he became a Special Forces support staff qualified person, there was training he needed to do.
·Said his next deployment to Afghanistan was a longer one, it was for the second half of 2010.
·When taken to Australian Army Minute – Exposure of SOTGVI Personnel to environmental Hazards dated 29 May 2008, said:
oSOTG means special operations task group.
oIt related to Afghanistan.
oIn May 2008, he was not a member of SOTG but he was working at SOTG doing infrastructure install.
oThe minute applies not just to SOTG but to those working in that environment.
oHe agreed that only part of the minute would apply to him.
·When asked if, as part of their special operations team, when they had communication issues in the field was there an operator who was trained to do what he could do in the field and how did that work, said that when he was in SF he was the node commander, he was the main person in charge of the comms infrastructure there, he had three people working for him and he would send one of them out.
·Said during his 2010 deployment, he was still part of signals in the special operations support staff. Now he ran all the base infrastructure so he was more of the maintenance side rather than the install side however due to his background he did still do a lot of install. He had a tendency to try and improve things when he went to a location. If he was not maintaining something, he was trying to improve it.
·Confirmed that the burn pits he referred to earlier were still there in 2010.
·Said that they did the electronic counter-measures, ECM installs on all the vehicles, when he said they fitted out all the vehicles with all the comms infrastructures, it was a blank vehicle, they did all the ECM install and there were a lot of other people having issues with that stuff at the moment with cancers and things in different corps.
·Said with his actual corps in SF, there has been an unprecedented number of cases of lymphoma. He has a few friends with lymphoma at the moment who were in the same corps as him. They are slightly different lymphomas but they are all lymphoma in young people who were in the same sort of location.
·Said on deployment there were a lot of blackouts. They were running their own generators and there were bombs or bullets coming and hitting things, so they were stressful times and when the whole system went down it was up to his team to get it back up and running.
·When asked what was it about the installs, how they worked and being subject to the waves that he thought was causing the harm, said:
I don’t know. It’s – like it’s non-ionising radiation, which is meant to be not too bad. But if you’re in front of a satellite beam that’s beaming out to – people don’t normally stand in front of the thing but when you’re installing it, sometimes you get a burst of energy when you’re in front of it, so microwave as well.
Exposure to those things, I – no one knows how – there was things like, I think, after I left the army, someone brought up to me on Facebook somewhere that they’ve taken the CMST sat gear out of service because they found it was carcinogenic, the paint on it, not the actual dish itself but the stuff it was painted with.
I said oh, I used to sleep under that thing and sleep with it. But you know, like it’s little things like that but they’re not – I’ve left, I’m not in the unit anymore and I asked for someone to explain that to (indistinct) - - -
·When asked about the accumulative equivalent dose of ionising radiation as set out in the SOP said that factor relates to his second deployment to Afghanistan.
·Said that in his 2008 deployment to Afghanistan, he was tasked by the ADF to go and help the Americans for a couple of weeks because they did not have a fibre person and they needed fibre runs done. The work he did was on the American flight line where they had their radar set up which was ionising radiation. It was a low-ground sweep one to protect the airport from any rocket launches.
·The following exchange occurred when further information was sought on that point:
MR HAWKER: Okay. Just picking up then to get as much detail from you as we can about that, when you said that second occasion in Afghanistan in 2008 and the US radar. Can you outline for the tribunal as much detail as you can possibly remember about any specifications, who was involved, what you did from start to end over that period of time?---It was evolved, it was me, was the only Australian and I went over with (indistinct) young American soldier who was helping me. Time would’ve been about two weeks exactly, actually, and it was in – I can’t remember the camp’s name, Palamina or something like that, across the runway from where we were. And it was to install fibre networks. They used single mode fibre too, so it was different to our fibre but our (indistinct) either single or multi, so it didn’t really matter. And it was from their radar facility down to their, I think it was their headquarter building down a bit further.
When you say their radar facility, this is the US radar facility - - -?---US.
Facility to the - - -?---Like their – whereever – I didn’t know the buildings, I just did the cabling.
Yes. And when you said across the runway, was this an airport?---Yes, so it was across the other side of the runway so it (indistinct) an airport there, an air strip. The main Australian camps and multinational camps on one side of the runway, so there’s a lot of nations there, I think there was 40 nations. And then they had the early warning stuff over the other side which was the low-level radar.
But low-level radar?---Yes, so it was designed to pick up any rockets or anything like that coming in because they came quite frequently.
And was it the low-level radar, is that what - - -?---That supplies – like you’re supposed to stay a distance away but when you’re doing the cable to it, you’ve got to sort of get pretty close.
How close did you get, to your recollection?---On top of the container, on top of the hill, so it would’ve been 10 metres, maybe, five metres.
And what – why did you have to get to that five to ten metres close to the radar with the optic fibering, what was the - - -?---I had to join the fibre to another bit of fibre and then – so I was just splicing fibre that had broken, been broken, and fixing it basically.
Okay. And how long – so you – over the course of the two days, can you take us through how long were you at each location? - - -
MEMBER: Two weeks.
MR HAWKER: Sorry, over the two weeks?---Near the radar, I’d be as short a time as possible but most of the work was down near the building, putting all the fibre like and along the line. Doing a few (indistinct).
How far away was the building to the radar approximately?---100 metres. Or if my memory is not the best, I lost all my memory after chemo and then it’s come back but - - -
Yes, that’s all right, I only expect you to do your best. So was it over the course of the two weeks when you said the main – most of the work was near the building, why was most of the work at the building and not near when you got to that, sort of, 5 to 10 metres near the radar?---Because that’s where it was all broken mainly, I think a vehicle ran over it.
Okay?---But up near the radar it’s pulled it from like when it’s been ripped out down here, it pulled the cable and bits had snapped further up where the joins are.
Yes. And when you said most of the time there, was that – were you kind of aware of what it was, the radar, so you wanted to spend as little time as you could there at the time or - - -?---They give you a warning, there’s big warnings.
Yes?---Yes. But that’s what you’ve got to do when you’re there so.
And are we talking – you said look, I need to get up there, I want to be back in an hour or were you spending a day or two, weeks or more, what was the sort of - - -?---No, there’s days like there but it was – yes, we had to do it and then get out – when you say how long was it? I’d go up with the intention of only being there a short a time as possible but sometimes things don’t work out. If it’s fibre splicing is a very tricky thing, especially single mode. So you’d burn the thing and you’d get it all nice then snap another line - - -
And don’t worry about your intention but how long were you there for, just so I can – objectively, factually, how long?---At the - - -
In that close range?---Close range?
That 5 to 10 metres near the radar?---I would – yes, it would only be a day or two there. Like and that would – I’d have done bits and then walked away and then done bits, walked away.
MEMBER: It would be a day or two over the two weeks that you would’ve been up there?
WITNESS: Yes.
MR HAWKER: Is that – you know, in looking at the SOP factors and Member pointed that out, it’s got some examples about it, this doesn’t – which aren’t directly on point but it’s – yes, it’s just useful to know precisely as much information as you can about - - -?---And a couple of the other things that were, like I say, they had these high powered antennas around, I don’t know what – they weren’t our antennas, they were American and things, so I don’t know what actually was coming out of them.
Can you give us any idea, in your experience, when you talk about it being the – I think did you describe it as a lower-level radar, or a low level radar, is that a technical term?---I don’t know the term exactly but it was one that was designed rather than to look for things in the air, look for things that are rockets and things coming in over the runway. Early warning for any rocket attack, basically.
MEMBER: So does that mean then, the beams that are coming out of those radars are a lot lower, rather than up?
WITNESS: Lower – correct.
MEMBER: So give me an example, what does lower mean, is lower then anyone and anything within its path and then how tall is that? Are you walking in front of its path?
WITNESS: Yes, so you’re not meant to walk in front, that’s why it was on top of a shipping container, on top of a hill. So it was 10 metres up probably from the runway. But when you’re working, we’d walk up the hill to work on it so we’re near the shipping container basically. And there is a distance, safety distance, but I don’t know - - -
MEMBER: But it wasn’t like it was point into the area where people are working and are all the time - - -
WITNESS: No.
MEMBER: It is pointing up a bit, just not as high - - -
WITNESS: Up a bit but it’s very flat so – over the other side, so it’s pointing up but just above, sort of, it’s not like into the sky looking for things, it’s just looking for rockets and things coming in at that – and on that 2010 one, that’s where I hurt myself causing a hernia as well.
MR HAWKER: Oh yes, I will give you a chance to comment on that, yes – yes, thanks. Just – I digressed a little bit because I think it’s important to get those facts about that incident you were talking - - -
MEMBER: While we are still there, so microwave and radio waves, low frequency radio waves, are they examples of non-iodising radiation?
WITNESS: They’re non-ionising.
MEMBER: So what then was the ionising?
WITNESS: Radar, I think is ionising.
MEMBER: So the frequency is coming out of the radar?
WITNESS: M'mm.
·When asked about what his hours were when he was doing installation and repairs while on deployment, said they were long, very long hours:
Long, long days, very long. Installation repairs are – you are there for a short time and they do not factor in much break time during that and it is very long days, we would be working at night, some nights, like through the day and through the night, so depending on timelines and what needed to be done.
·Confirmed that the two weeks going to help with laying the fibre optics, was two weeks of going hard because they had to go in and get the job done and move onto something else.
·Said when a communication link went down and the boss told him to get it back up, he had to keep going until the issue was fixed.
·In relation to his deployment to Afghanistan in 2012, when taken to the medical reports in relation to the physiotherapy he received after his hernia surgery, said that the pain was on and off, he would not have pain and then he would get inflammation and pain. It depended on his workload and what he was doing, so it was intermittent, it was always there but went up and down.
·Said after his surgery in 2011, he was able to get back to being active, however he had to change his routine as to what it was, he was able to do. For example, he subsequently struggled with sit ups and things like that.
·
When taken to the medical documents in relation to the diagnosis of lymphoma, agreed that the Operation Report completed by Dr William Braun dated
6 July 2016 provides that in terms of the clinical onset, at least by that point in time there were signs and symptoms that allowed the doctor to say that he had a diagnosis.
·Confirmed that the pathology report dated 15 July 2016 in which the pathologist concurred with the diagnosis of B-cell lymphoma unclassifiable with features intermediate between Burkitt lymphoma and diffuse large B-cell lymphoma was what Mr Cullen meant when he was talking about the description of a diffuse large B-cell lymphoma.
·Said that he had two cancers in the one tumour which is unheard of because Burkitt lymphoma is very rare and aggressive.
·When asked how he was exposed to benzine whilst in Afghanistan or Iraq said:
oIn refuelling.
oThey hot refuelled generators because they could not shut them down and that gave off more emissions. You are not supposed to hot refuel but it is something you have to do in certain circumstances. For example, at one stage they had a temporary generator sitting right outside their building running the whole thing because the power was offline, getting redone, so they were running 24/7, he does not know if that is a normal exposure level.
oHe used WD-40.
·When asked if he agreed with the statement that in sigs it is highly likely that the rate of exposure to benzine would be no less or no more than the average rate of exposure to any person, civilian or military in relation to his day to day life in Brisbane as opposed to his day to day life in Afghanistan, said it was massively different because in Afghanistan, they were right next to them, they were sleeping there.
·Said as he stated at the start that he was in sigs corps but he had always been in specialised branches of sig corps so he never did the same as the sig corps.
·Said they used both petrol and diesel generators and some of the little ones were used inside when required. The generators were refuelled by jerry cans.
·The following exchange occurred in relation to radiation from satellites:
MEMBER: Certainly. I just have one other question because I asked about whether or not the – whatever it is that radiates from the radars was iodising. What about from the satellites?
WITNESS: The satellite is non-ionising. I am pretty sure. But the problem with the satellite is if you’re in front of the transponder at the front, you’re not meant to be sitting right in front because it’s high powered, it’s got to get its signal up to space to the satellite.
So that’s where the high power, versus non-ionising, versus low power non-ionising of a radio comes into difference there. Like – yes. And we try not to step in front of them or get in front, but I remember once before that it was supposed to be turned off and it got switch on by someone while we were working on it. So - - -
MEMBER: And did you notice a difference?
WITNESS: You can – no, not really. They say you can feel the heat like heating your body up, but I wouldn’t notice really. The locations you’re in, it’s hot enough as it is.
·Said that the ionising radiation would not have been Australian ionising, it was from a foreign country, “most of our kit is fairly low powered compared to the Americans” and it was doing the work in 2008 with the cabling at the bottom of the radars that he says is where he was exposed to the most ionising radiation.
At the conclusion of the Veteran’s evidence, the Respondent identified that the Veteran had provided evidence not previously before the Tribunal or previous decision makers in relation to the factor found in section 9(25) of the non-Hodgkin lymphoma SOP regarding exposure to ionising radiation. The Respondent undertook to seek instructions in the adjournment in relation to that evidence.[49]
[49] Transcript of 1 September 2021, pages 46-48.
After the adjournment, the Respondent told the Tribunal that the parties were in agreement that the Veteran’s potential exposure to ionising radiation was worthy of further consideration and investigation. The Respondent agreed to obtain a copy of the Hearing transcript and with direction of the Tribunal, provide it to the Veteran. Mr Cullen agreed that the Veteran would then provide a further statement with any additional details about ionising radiation concerned with his exposure to the radar in Afghanistan, after which the Respondent undertook to source and commission an appropriate expert to comment on the exposure issue and provide a calculation. It was agreed that once the expert report was received, a Directions Hearing would be convened to determine the next steps.[50]
[50] Transcript of 1 September 2021, pages 50-53.
On 21 October 2021, Mr Cullen provided a submission on behalf of the Veteran with attachments and provided as follows:[51]
[51] Applicant’s submissions dated 21 October 2021, page 1.
SOP 90 OF 2018:
Factors 9 (4) (24) (25) 19(a)(b)) 20(a)(b) (21) (15) plus any others that may fit.
While referring to Factor 9(25) and the 5-year period and where the veteran had the inflammation for 4 years and 11 months before the Clinical Onset then we wish to claim material contribution as per Kattenburg case.
Attached is a Minute from the Australian Army showing exposure of SOTGVI personnel to environmental hazards while serving in Afghanistan. This information may have already been sent to both parties but has been included in case this evidence has been overlooked.
In the attachment re Defence OHS Incident Reports it sets out a number of incidents re exposure to numerous hazards arid I believe these should be considered in conjunction with the relevant SOP. I also believe the Statement by the Applicant should be taken into account with all documentation ie SOPs, OHS Reports, Medical Reports and further evidence that is attached.
Also attached is a Safety Data Sheet relating to Perigen Defence Residual Insecticide – 14 pages plus a covering letter and a Google search for Plasmodium Falciparum Malaria.
There may be a number of Factors in the SOP that I have not mentioned however, as long as the veteran fits at least one Factor then the Appeal must succeed.
SUMMARY:
As this is a Reasonable Hypothesis case, it must be proven beyond reasonable doubt that the Applicant was not exposed to or suffered from any material that is attached.
In a request for Expert Report dated 3 November 2021, the Respondent provided an overview of the evidence before the Tribunal along with a large volume of documents to
Dr Rick Tinker, from the Australian Radiation Protection and Nuclear Safety Agency. The Respondent requested that Dr Tinker carefully and closely review all of the enclosed documentation and answer the following schedule of questions:[52]3.1 In relation to the Statement of Principles for Non-Hodgkin lymphoma (SOP No. 90 of 2018) enclosed at 2.1 and in particular factor 9(24).
Having regard to the available documentation and the applicant’s oral evidence given at the Tribunal hearing on 1 September 2021, in your opinion, has the applicant received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the bone marrow at least five years before the clinical onset of non-Hodgkin lymphoma? Please provide comprehensive reasoning as to why or why not. Please also conduct your assessment in accordance with the following note.
Note: cumulative equivalent dose means the total dose of ionising radiation received by the particular organ or tissue from external exposure, internal exposure or both, apart from normal background radiation exposure in Australia, calculated in accordance with the methodology set out in Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the Veterans' Entitlements Act 1986 (Cth), Australian Radiation Protection and Nuclear Safety Agency, as in force on 2 August 2017.
3.2 Please review the other factors listed in the Statement of Principles for Non-Hodgkin lymphoma (SOP No. 90 of 2018) at paragraph 9 and, to the extent it is within your area of expertise to do so, comment on whether, in your opinion, any of the other factors are satisfied in paragraph 9.
If you identify any factors that exist in relation to the applicant on the available material, please provide comprehensive reasons in support of your opinion by reference to the requirements in the Statement of Principles for Non-Hodgkin lymphoma (SOP No. 90 of 2018) and the documentation in your brief.
[52] Exhibit 5, Request for Expert Report, page 5.
On 6 December 2021, in response to the request for a report, Dr Tinker provided:[53]
I acknowledge receipt of the brief (Request for Expert Report) sent on 30 November with the request to provide a report that makes an assessment of the cumulative equivalent dose of ionising radiation in accord with the Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the Veterans' Entitlements Act 1986 (Cth) (Link).
To calculate the ‘cumulative equivalent dose' for consideration against the Statement of Principles for Non-Hodgkin lymphoma (SOP No. 90 of 2018) an exposure to ionising radiation needs to be first established.
In my review of the material provided, the applicant describes exposure to different forms of non-ionising radiation during service. Exposure to radiofrequency radiation from operating radar and microwave transmitters is referenced by the applicant. Lasers and exposure to solar ultraviolet radiation are also described in medical reports. These forms of non-ionising radiation are not types of ionising radiation. Non-ionising radiation is not a factor described in the SOP.
In the medical report T112, dated 10 March 2008 on page 4, the ionising radiation hazard box has been ticked for weekly exposure with unclear notes. Without further information no assessment can be undertaken on this T112 information. Further there is no other description of any other ionising radiation or radioactive material exposure recorded in the material provided, for instance therapeutic medical procedures involving ionising radiation.
It is my opinion that there is insufficient evidence of any ionising radiation exposure during service and a cumulative equivalent dose cannot be determined.
[53] Exhibit 5, Email response provided by Dr Tickner, page 1.
A Telephone Directions Hearing was conducted on 13 December 2021. At the Telephone Directions Hearing, Mr Cullen indicated that the Veteran did not seek to put any questions to Dr Tinker or to provide any further evidence, instead he sought to file a closing submission. The Respondent indicated that in such circumstances, they also sought to file a closing submission. As a result, the Tribunal set directions with regards to the filing of closing written submissions.
APPLICANT’S sUBMISSIONS
Mr Cullen provided a Statement of Facts, Issues and Contentions dated 17 March 2021[54] on behalf of the Veteran, in which he contended that the Veteran’s condition of non-Hodgkin lymphoma is related to his warlike service with the other two conditions being sequalae conditions and that the conditions are not in doubt, but it is the standard of proof that is in doubt. Mr Cullen contended that a reasonable hypothesis was raised. Mr Cullen sought to rely on the factors set out in sections 9(17), 9(20), 9(21), 9(22), 9(24) and 9(25) of the
non-Hodgkin lymphoma SOP.[55]
[54] Exhibit 3, Joint Hearing Bundle, A4, Applicant’s Statement of Issues, Facts and Contentions.
[55] Exhibit 3, Joint Hearing Bundle, A4, pages 26-28, Applicant’s Statement of Issues, Facts and Contentions.
Mr Cullen submitted that the Veteran only needs to fit within at least one of those factors to follow the Deledio case. He submitted that the decision maker must decide, in the following order, whether:[56]
(a) There is a hypothesis of connection to service;
(b) That hypothesis includes a connecting Factor recognised by the SOP;
(c) The whole of the material before the Decision-maker points to the existence of that Factor and its relationship to that service, and the hypothesis reasonable; and
(d) Even if the hypotheses is reasonable, the Decision-maker is nevertheless satisfied beyond reasonable doubt that the factual foundation for the hypothesis is disproved or negated by an inconsistent fact.
[56] Exhibit 3, Joint Hearing Bundle, A4, page 26, Applicant’s Statement of Issues, Facts and Contentions.
Mr Cullen submitted that through the claim for compensation process, it did not seem to be about the decision maker being able to disprove beyond reasonable doubt, but to be about the Veteran being required to prove that he fits within a factor in the relevant section of the non-Hodgkin lymphoma SOP. Mr Cullen sought to rely on the decision in Repatriation Commission v Deledio (1998) 83 FCR 82 to establish that there is an onus of proof on the Respondent to disprove the claim beyond reasonable doubt.[57]
[57] Exhibit 3, Joint Hearing Bundle, A4, pages 27-28, Applicant’s Statement of Issues, Facts and Contentions.
Mr Cullen provided the following summary of his contentions on behalf of the Veteran:[58]
SUMMARY
We believe a reasonable hypothesis has been raised and as such the decision of the Military Rehabilitation and Compensation Commission should be set aside and compensation be paid to the Applicant.
If the Commission cannot prove beyond reasonable doubt at least one of the Factors mentioned above, then the claim must succeed.
I realise that a lot of emphasis has been stated in this Submission relating to Reverse Standard of Proof but it is the basis of the reasonable hypothesis and I feel it is very important in a case where war-like service is concerned. This Veteran served in a country where not too long ago Russia was at war with the Taliban in Afghanistan and who knows what chemicals were used by them. This Veteran voluntarily went to Afghanistan repeatedly and was prepared to put his life on the line on a number of deployments and then suffers a condition that the Commission is now putting him through to try and deny him compensation.
I am aware that we have legal requirements, however we are all aware of the Reverse Standard of Proof of the Criminal Code in reaching a decision and I believe it should be used to its fullest extent.
[58] Exhibit 3, Joint Hearing Bundle, A4, page 28, Applicant’s Statement of Issues, Facts and Contentions.
On 4 January 2022, Mr Cullen provided closing submissions[59] on behalf of the Veteran and provided that they should be read in conjunction with the Statement of Issues, Facts and Contentions. Mr Cullen submitted:[60]
[59] Applicant’s closing submissions dated 4 January 2022.
[60] Applicant’s closing submissions dated 4 January 2022.
·The Veteran had a number of x-rays and MRIs prior to 2015 of which include:
o19 October 2015 (MRI)
o12 November 2015 (MRI)
o14 November 2015 (not sure if MRI or x-ray)
o29 July 2015 (not sure if MRI or x-ray)
·The report of Dr Tinker was not much help as a definitive answer cannot be given.
·The Minute setting out environmental hazards encountered by SOTGVI personnel while serving in Afghanistan and associated Defence OHS Incident Reports clearly set out the hazards encountered but those reports do not set out the quantities of exposure.
·It may be years after the war in Afghanistan is over before any real data on exposure to radiation is quantified. This radiation exposure seems to replicate the effects that “Agent Orange” had on troops serving in Vietnam.
·There is no clear indication of specific hazards encountered, due to the burning of rubbish.
·The OHS report that referred to potential exposure to radio frequency/RADHAZ emitted through provision of communications equipment, and equipment involved in electronic countermeasures; potential exposure to environmental and occupational hazards and laser exposure and smoke from incinerated waste apply to the Veteran.
·For the purpose of factor 9(17), evidence is attached relating to Phenoxy Acid Herbicide and all that is required is inhaling, ingesting or having cutaneous contact with Phenoxy Acid Herbicide from the specified list.
·Australian Defence Force (ADF) disruptive pattern combat uniform (DPCU (shirt fabric and entire shirts were treated by dipping emulsion (Perigen Defence, containing 500g/litre permethrin).
·Clothing was dipped in this emulsion, both in Australia and deployments overseas.
·
For the purposes of factors 9(20) and 9(21), the email from Defence SAM dated
19 February 2019 has not considered personnel who have been deployed to Afghanistan and the hazards that existed, it only covers service in Australia and drivers of vehicles.
·Factor 9(25) is possibly the most important factor.
“The [Veteran’s] chronic inflammation was for 4 years and 11 months. If we refer to the “Kattenburg” Principle we would be looking at Material Contribution and the “But for” test. There are many cases cited relating to “but for” principle. However, in this case if the [Veteran] did not have surgery for his hernia, he would not have had surgical mesh implants.”
“To clarify the above, the condition of non-Hodgkin lymphoma was due to a sequalae of his hernia surgery that has been accepted as war caused.
The condition the Veteran now suffers due to his service in Afghanistan, would not have been contracted but for him having rendered eligible war service, or the changes in the [Veteran’s] environment consequent upon him having rendered eligible war service.”
By way of summary of the Veteran’s case in closing submissions, Mr Cullen provided the following:[61]
SUMMARY
This Veteran has been exposed to numerous hazards while serving, especially in Afghanistan.
These hazards have been recognised by Defence and should also be recognised by the Department of Veterans’ Affairs. It is our contention that a combination of all of these hazards materially contributed to the present condition of non-Hodgkin lymphoma.
In the “Kattenberg” case, material indicates a contribution that is above trivial contribution but in this case, there was a substantial contribution in the mesh implant.
If we look at the case of “Flentja” and Repatriation Commission HCA 19 May 1998 at page 7, there is mention of the beneficial nature of the legislation. It says, “It is undoubted that the Government intends to confer every possible benefit to Veterans in recognition of their service to their country.”
Given that statement, I request the Tribunal look on this case in a beneficial nature if the evidence supplied allows the Tribunal to do so.
[61] Applicant’s closing submissions dated 4 January 2022.
Mr Cullen made two further brief submissions dated 27 January 2022 and 3 February 2022 contending that in relation to the clinical onset requirement regarding the Veteran’s mesh insertion following hernia surgery, that the Tribunal is not governed by technicalities and that the Veterans’ legislation is beneficial legislation and should be considered as such.
Respondent’s Submissions
The Respondent provided closing submissions dated 28 January 2022[62] in which it sought to rely on the previously filed Statement of Issues, Facts and Contentions dated
30 April 2021[63] and Outline of Reply dated 13 August 2021.[64]
[62] Respondent’s Closing submissions dated 28 January 2022.
[63] Exhibit 3, Joint Hearing Bundle, R1, Respondent’s Statement of Issues, Facts and Contentions.
[64] Exhibit 3, Joint Hearing Bundle, R2, Respondent’s Outline of Reply.
The Respondent contended that on the material before the Tribunal, liability is not established in relation to the Veteran’s non-Hodgkin lymphoma.
CONSIDERATION
The Tribunal accepts Mr Cullen’s contentions that the suite of Veterans’ related legislation is beneficial legislation, however that does not mean that the Tribunal can make a decision that does not accord with the legislative requirements set out in such legislation.
As previously outlined the Veteran’s claim for acceptance of liability for his non-Hodgkin lymphoma relates to his warlike or non-warlike service and as such, the requirements of sections 335(1) and (2) of the MRC Act apply such that the standard of proof the Tribunal must apply is that of “beyond reasonable doubt”. In order to reach a conclusion in that regard, the Tribunal must also consider whether the requirements of section 338 of the MRC Act are satisfied.
It is appropriate to engage in consideration of the principles set out in Deledio.
Deledio Principles – Step 1
In considering the first step of the Deledio Principles, the Tribunal does not engage in a fact-finding exercise, rather it is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon.[65] Whether that material points to or supports a hypothesis can be determined by inference or assumption.[66]
[65] Forrester v Repatriation Commission [2013] FCA 898 at [14]; Ellis v Repatriation Commission [2014] FCA 847 at [15].
[66] Forrester v Repatriation Commission [2013] FCA 898 at [30]; Ellis v Repatriation Commission [2014] FCA 847 at [15].
The Veteran raised the hypothesis that his non-Hodgkin lymphoma is a service disease resulting from his claimed exposure to numerous hazards while serving, especially in Afghanistan and/or from his hernia surgery.
The Respondent contended that such a hypothesis requires the Tribunal to infer or assume some elements of that hypothesis, however, did not contend that Step 1 of the Deledio Principles was not met.[67]
[67] Respondent’s Closing submissions dated 28 January 2022, page 4, paragraphs 4.1-4.3.
The Tribunal, having considered the material before it, finds that the hypothesis raised has some support in that material and Step 1 of the Deledio Principles is met.
Deledio Principles – Step 2
The second step in the Deledio Principles requires the Tribunal to ascertain whether there is a relevant SOP in force in relation to the hypothesis raised in Step 1.
In this matter, it is not disputed that the SOP in force relevant to the hypothesis raised is the non-Hodgkin lymphoma SOP.
As such, the Tribunal is satisfied that Step 2 of the Deledio Principles is met.
The Tribunal notes that the Veteran sought to rely on the following factors set out in sections 9(17), 9(20), 9(21), 9(22), 9(24) and 9(25) of the non-Hodgkin lymphoma SOP.
Deledio Principles – Step 3
The third step of the Deledio Principles requires that the Tribunal form an opinion as to whether the hypothesis raised is a reasonable one. To do this, the Tribunal is required to determine if the hypothesis fits or is consistent with the template found in the non-Hodgkin lymphoma SOP.
Forming such an opinion involves the reaching of a factual conclusion and involves the assessment of all material before the Tribunal. However, it does not involve the finding of facts or rejecting of material.[68] The challenge faced by the Tribunal in undertaking this assessment was considered by Logan J in Stevens v Repatriation Commission [2018] FCA 1866. Logan J said at [24]:
In Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at [48], the Full Court observed:
48. The dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern.
That observation, with which I respectfully agree, is but one indication of the difficulties which confront veterans, their advisors, the Commission and its departmental delegates in the administration of the VEA and, in turn, the VRB and the Tribunal in those cases which come before them in this branch of the law. Reading the Tribunal’s reasons fairly, I do not consider that there was any impermissible straying from assessment of material into impermissible fact finding in relation to whether an hypothesis which was reasonable was raised.
[68] Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [48].
As such, in forming its opinion, the Tribunal must not stray from an assessment of the material into impermissible fact finding in relation to whether a reasonable hypothesis was raised.
In considering the issue of reasonableness, assistance is provided by the following observations of Mortimer J in Forrester v Repatriation Commission [2013] FCA 898 at [32]:
The reasonableness of a hypothesis is in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…
Although it is not necessary for every element of a hypothesis to be supported, or pointed to, by the material before the Tribunal, the essential elements of the hypothesis must be addressed.[69] It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[70]
[69] Repatriation Commission v Hill [2002] FCAFC 192 at [55]; Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [59].
[70] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [63].
As set out above, the Respondent did not dispute that the Veteran’s claim satisfies Steps 1 and 2 of the Deledio Principles, rather it contended that the claim fails at Step 3.
Introduction
The essential elements of the non-Hodgkin lymphoma SOP are that at least one of the listed factors set out in section must as a minimum exist and it must be related to relevant service rendered by the Veteran.[71] For the purposes of assessing the listed factors, the Tribunal notes that the clinical onset of the Veteran’s non-Hodgkin lymphoma is accepted to be late June or early July 2016.
[71] Sections 9 and 10 of the non-Hodgkin lymphoma SOP.
In considering the non-Hodgkin lymphoma SOP factors raised by the Veteran, the Tribunal considers it appropriate to deal with them collectively in relation to the hypothesis concerning exposure to hazards and separately in relation to the hypothesis concerning his hernia surgery.
Hypothesis: Exposure to numerous hazards while serving, especially in Afghanistan
In relation to the hypothesis raised by the Veteran that his non-Hodgkin lymphoma was related to his claimed exposure to numerous hazards while serving, especially in Afghanistan, he sought to rely on factors set out in sections 9(17), 9(20), 9(21), 9(22), and 9(24) of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(17) of the non-Hodgkin lymphoma SOP existed, the Veteran must have inhaled, ingested or had cutaneous contact with a phenoxy acid herbicide from the specified list:
(a)for a cumulative period of at least 1000 hours, within a consecutive period of ten years, before the clinical onset of non-Hodgkin lymphoma; and
(b)where the first exposure occurred at least five years before the clinical onset of non-Hodgkin lymphoma.
The phenoxy acid herbicide from the specified list means:[72]
(a)2,4-dichlorophenoxyacetic acid (2,4-D);
(b)2,4,5-trichlorophenoxyacetic acid (2,4,5-T); or
(c)2-methyl-4-chlorophenoxyacetic acid (MCPA).
[72] Section 1 of Schedule 1 – Dictionary of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(20) of the non-Hodgkin lymphoma SOP existed, the Veteran must have been exposed to benzene as specified:
(a)for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of non-Hodgkin lymphoma; and
(b)where the first exposure in that period occurred at least five years before the clinical onset of non-Hodgkin lymphoma.
Being exposed to benzene as specified means:[73]
(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.
[73] Section 1 of Schedule 1 – Dictionary of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(21) of the non-Hodgkin lymphoma SOP existed, the Veteran must have been receiving greater than ten ppm-years of cumulative exposure to benzene before the clinical onset of non-Hodgkin lymphoma, and where the first exposure occurred at least five years before the clinical onset of non-Hodgkin lymphoma. Ppm-years means parts per million multiplied by years of exposure.[74]
[74] Section 1 of Schedule 1 – Dictionary of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(22) of the non-Hodgkin lymphoma SOP existed, the Veteran must have inhaled ethylene oxide vapour:
(a)for a cumulative total of at least 2500 hours within a consecutive period of ten years before the clinical onset of non-Hodgkin lymphoma; and
(b)where the first exposure in that period occurred at least five years before the clinical onset of non-Hodgkin lymphoma.
To establish that the factor set out in section 9(24) of the non-Hodgkin lymphoma SOP existed, the Veteran must have received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the bone marrow at least five years before the clinical onset of non-Hodgkin lymphoma where cumulative equivalent dose is defined in the dictionary to the non-Hodgkin lymphoma SOP.
In regards to the factors set out in sections 9(17), 9(20) and 9(21) of the non-Hodgkin lymphoma SOP, Mr Cullen referred the Tribunal to an attached memo dated
21 October 2021 relating to Perigen Defence Residual Insecticide on the basis that ADF disruptive pattern combat uniform (DPCU) shirts are treated by dipping emulsion in Perigen Defence containing 500g/litre permethrin.[75] The Tribunal notes that the excerpt of the Bayer Approved label for Perigen Defence Residual Insecticide provided by the Veteran[76] deals with repellent treatment of clothing of Australian Defence Force personnel.
[75] Applicant’s attached memo in closing submissions, page 1.
[76] Applicant’s submissions dated 21 October 2021, page 6.
It is uncontroversial that the Veteran would have worn DPCU shirts during his service. The Veteran confirmed that point in his evidence and references to the treatment of the DPCU shirts.
The Tribunal notes that the Bayer Safety Data Sheet for Perigen Defence Residual Insecticide provided by the Veteran[77] lists its composition which does not include a phenoxy acid herbicide in the specified list.
[77] Applicant’s submissions dated 21 October 2021, pages 8-9.
In the evidence provided by the Veteran (as outlined above), he has described exposure he experienced, during his deployments, to different kinds of chemicals and in particular, diesel and petrol. The Veteran did not however provide any evidence in relation to the extent of his exposure to chemicals.
The information provided by the Department of Defence (as provided in paragraph 14 above) provided that the ability to measure exposure to Benzene is difficult and that in the case of the Veteran, there was nothing in his trade or career profile that would suggest his risk of, or exposure to, benzene is any greater than the average person. The information provided that it should be noted that the major sources of benzene exposure are tobacco smoke, automobile service stations, exhaust from motor vehicles and industrial emissions.
The information provided by the Department of Defence (as provided in paragraph 22 above) provided that it was unable to provide details as to how the Veteran was exposed, the cumulative exposure and where he was exposed to other chemicals, ethylene oxide vapour or ionising radiation during his ADF employment but acknowledged that in general terms, he would have regularly been exposed to a range of hazards.
The Veteran provided evidence (as outlined above) in relation to the inhalation of smoke from burn pits in Afghanistan during his deployments.
The Tribunal notes that the SOTG Minute regarding exposure of SOTGVI personnel to environmental hazards dated 29 May 2008 identified exposure to waste incineration, dust inhalation, laser and radiation hazards with the associated Defence OHS Incident Reports outlining further details of the management of those exposures. Those OHS Incident Report makes it clear that the defence personnel who were part of SOTGVI (of which the Veteran gave evidence he was) were exposed to:
·Significant amounts of smoke from incinerated waste, the report does not however provide details about what was specifically being burnt or the resulting chemical substances that may have been in the associated smoke.[78]
·Large quantalities of dust, the report does not however provide details about whether there were any chemical substances that may have formed part of the dust.[79]
·Radio frequency/RADHAZ emitted through provision of communications equipment and equipment involved in electronic countermeasures as RASIG’s SOTG, the report however does not indicate what kind of radiation exposure may result.[80]
[78] Exhibit 4, Australian Army SOTG Minute, pages 10-11
[79] Exhibit 4, Australian Army SOTG Minute, pages 18-19
[80] Exhibit 4, Australian Army SOTG Minute, pages 14-15
At the Hearing, the Veteran gave evidence that he believed he had been exposed to ionising radiation during his 2008 deployment to Afghanistan as he was required to run optic fibre cabling from close vicinity to a United State forces low level radar back to a main building near the airport strip. As a result of that evidence, the Respondent sought an expert report from Dr Tinker who opined (as set out in paragraph 56 above) that upon his review of the material provided, that the Veteran described exposure to different forms of non-ionising radiation. Dr Tinker provided that in his opinion there was insufficient evidence of any ionising radiation exposure during service and a cumulative equivalent dose could not be determined.
The Veteran’s closing submissions provided limited details of x-rays or MRI scans he had undergone in 2015. The Tribunal notes that these procedures did not occur at least 5 years prior to the clinical onset of the Veteran’s non-Hodgkin lymphoma and as such, do not fit within the factor set out in section 9(24) of the non-Hodgkin lymphoma SOP.
The Respondent contended that there is insufficient material before the Tribunal to raise a reasonable hypothesis under those SOP factors being relied upon by the Veteran concerning exposure to various substances identified in those factors.[81] The Respondent submitted the following in support of that contention:[82]
[81] Respondent’s Closing submissions dated 28 January 2022, page 8, paragraph 4.14.
[82] Respondent’s Closing submissions dated 28 January 2022, pages 8-10, paragraphs 4.15-4.19.
4.15 That the applicant was exposed to the required quantity at the required time before the 'clinical onset' of non-Hodgkin lymphoma are essential elements. For the purpose of step three, it is not open for the Tribunal to infer or assume the essential elements of a hypothesis are met. The material raising the hypothesis does not include those essential elements:
(a) It would require speculation or assumption to conclude that the required quantity of exposure existed by the required time.
(b) The respondent sought to assist the Tribunal at the hearing of this application in comprehensively taking the applicant through the available service documentation in a methodical and chronological manner to give him an opportunity to comment and respond. Despite that opportunity, there remains no sufficient account from the applicant before the Tribunal as to his actual quantity of exposure as required by the SOP factors.
(c) There is no sufficient information from Defence before the Tribunal as to the actual quantity of exposure in response to the respondent’s request in that regard (ST2).
(d) The applicant’s post deployment health screens are insufficiently general and do not contain sufficient information to raise the actual required quantity of exposure (see T112/671-673, 602-605, 543-546, 524-527 and 502-505 in relation to which the applicant was given an opportunity to comment).
(e) Regarding exposure to “Benzene”, Defence was able to provide advice, based on advice from staff at the Joint Fuels Branch of Joint Logistics Command, that “in the case of the subject member, noting the member is in the RASIGS corps, it is highly unlikely his rate of exposure to Benzene would be NO LESS and NO MORE than the average rate of exposure of any person, civilian or military, refilling their motor vehicle fuel tank with unleaded petrol” and “there is nothing in the members trade profile that provides him with greater risk of, or actual, exposure to fuel products and other products that might contain Benzene” (T80/210).
(f) Regarding exposure to “ionising radiation”, as mentioned above, at the hearing of this application on 1 September 2021, the applicant gave an account about an alleged exposure to ionising radiation in Afghanistan in 2008 which ultimately led to an adjournment of the hearing for the purpose of seeking an expert report. In short, the applicant gave an account of alleged exposure to ionising radiation when he was called upon to run optic fibre cabling from close vicinity to a US low level radar back to a main building near the airport strip. The applicant’s claim (including a copy of his oral evidence) was provided to the Australian Radiation Protection and Nuclear Safety Agency, together with a voluminous brief of relevant material, to provide an assessment of the cumulative equivalent dose of ionising radiation in accordance with the applicable Guide per SOP factor 9(24). Dr Tinker, the Director of the Assessment and Advice Section explained in his emailed report dated 6 December 2021 that was the applicant had described was not exposure to ionising radiation. Rather, he had described “exposure to different forms of non-ionising radiation during service”. Dr Tinker explained that “Exposure to radiofrequency radiation from operating radar and microwave transmitters is referenced by the applicant. Lasers and exposure to solar ultraviolet radiation are also described in medical reports. These forms of non-ionising radiation are not types of ionising radiation. Non-ionising radiation is not a factor described in the SOP”.
4.16. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts even though not proved on the balance of probabilities: East v Repatriation Commission (1987) 16 FCR 517 at 533; applied in Budge and Repatriation Commission [2014] AATA 276 at [39].
A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey (1997) 79 FCR 364 at 372. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5]; applied in Budge at [40]. It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met: Ellis v Repatriation Commission [2014] FCA 847 at [63].
In the present matter, the above authorities are apt.
The respondent contends that at step 3 the Tribunal is to form an opinion whether the whole of the material raises a reasonable hypothesis and the formulation of that opinion involves consideration as to whether a relevant SOP upholds the hypothesis. The formulation of the opinion involves the reaching of a factual conclusion and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material. The respondent contends that the essential elements of the SOP are not raised in the material and to the extent the applicant asserts otherwise, at highest, are raised “so slightly” and no higher than a “mere possibility” such that the hypothesis cannot be viewed as reasonable.
[Footnotes omitted]
Hypothesis: Chronic inflammation resulting from hernia surgery
In relation to the hypothesis raised by the Veteran that his non-Hodgkin lymphoma was related to his hernia surgery in that he claimed to have chronic inflammation as a result of the mesh inserted during that surgery, he sought to rely on the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP existed, the Veteran must have diffuse large B-cell lymphoma and had chronic inflammation as specified at the affected site for at least five years before the clinical onset of non-Hodgkin lymphoma. Where chronic inflammation as specified means chronic suppuration or inflammation arising in settings such as pyothorax resulting from artificial pneumothorax for treatment of pulmonary or pleural tuberculosis, chronic osteomyelitis, metallic implant insertion, surgical mesh implantation and chronic skin venous ulcer.
It is not in contention that the Veteran had been diagnosed with diffuse large B-cell lymphoma.
The Veteran gave evidence that ever since undergoing his hernia repair surgery, he had experienced inflammation with pain consistently coming and going, which affected the way in which he has been able to return to exercise and resulted in him taking medication to assist to relieve the inflammation.
The Veteran provided information in relation to the associated risks of using surgical mesh.
In the Veteran’s closing submissions, Mr Cullen contended that the Veteran was affected by chronic inflammation for 4 years and 11 months before the onset of his non-Hodgkin lymphoma, however the but for test should be applied. Mr Cullen contended that the “Kattenburg” Principle should be applied as in this Veteran’s case, if he did not have surgery for his hernia, he would not have had surgical mesh implants. Mr Cullen contended that the Veteran’s non-Hodgkin lymphoma condition was a sequalae of his hernia surgery, which had already been accepted as being war caused.
The Respondent contended that the material before the Tribunal did not raise a reasonable hypothesis under the factor set out in section 9(25) of the non-Hodgkin Lymphoma SOP.[83] The Respondent submitted the following in support of that contention:[84]
4.20 The medical evidence shows that the history of the Applicant’s hernia condition as follows:
(a) On 29 July 2011, the Applicant underwent a bilateral inguinal hernia repair (T112, p 645).
(b) On 23 August 2011, Dr Shah reported the Applicant “made an uneventful recovery from his surgery”. He reported the Applicant had “little discomfort” in the area of the operation, but nonetheless he was back to “routine activities including jogging” (T112, p643).
(c) On 19 January 2015, the Applicant underwent a comprehensive preventive health examination where he reports he did not have any pain or swelling in the scrotum, nor persistent muscular pain or weakness. He did mention that since the last medical, he underwent the double inguinal hernia operation (T112, p707, 774).
(d) In June and July 2016, the Applicant reported abdominal pain which was identified as a tumour in his right iliac fossa (T112, pp1265-1266).
(e) The Applicant’s non-Hodgkin lymphoma was first diagnosed in late June 2016 when he presented with abdominal pain.
4.21 As the surgical mesh was not implanted until 29 July 2011, the Applicant falls one month short of the five-year time period contemplated by the SOP. In order to meet the SOP, the non-Hodgkin’s lymphoma would have needed to have onset on or after 29 July 2016. On that basis, the Respondent submits that the Applicant is unable to satisfy this SOP factor.
4.22 However, if the Tribunal was to find that the five-year time is met, the Respondent submits that the Applicant did not experience chronic inflammation for an extended period. Whilst the Applicant did experience intermittent pain, there is no evidence that it was chronic.
[83] Exhibit 3, Joint Hearing Bundle, R1, pages 46-47, paragraphs 4.18-4.22, Respondent’s Statement of Issues, Facts and Contentions.
[84] Exhibit 3, Joint Hearing Bundle, R1, page 47, paragraphs 4.20-4.22, Respondent’s Statement of Issues, Facts and Contentions.
In response to the Veteran’s closing submissions in relation to the 5 year requirement of the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP not being an essential element of establishing that the factor was met, the Respondent made the following contentions:[85]
4.21 The respondent understands from the applicant’s closing submission that the applicant does not dispute that the applicant did not have chronic inflammation as specified at the affected site for “at least five years” before the clinical onset of non-Hodgkin lymphoma as required by the SOP factor. The applicant’s closing submission accepts that the applicant’s chronic inflammation was for “4 years and 11 months”. The applicant seeks to rely on the ““Kattenburg” Principle” (sic) to contend that is sufficient. The respondent contends that submission should not be accepted for the following reasons.
4.22 In Kattenberg v Repatriation Commission [2002] FCA 412 at [44] (a case concerning, relevantly, a claim for a disc prolapse related to cigarette smoking), the Federal Court concluded that The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes as specified in the SOP factor was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of the applicable SOP.
4.23 In the respondent’s submission, Kattenberg does not assist the applicant in the present matter for two key reasons:
(a) Firstly, and critically, in Kattenberg, the quantity of cigarette smoking required by the SOP factor existed. The issue being addressed by the Federal Court was the correct approach to considering whether the satisfied SOP factor could be “related to service” (ie where some of the required quantity of smoking could be related to service and other parts of the quantity not related to service). That is not the same thing as saying that the quantity of cigarette smoking required by the SOP was not required to be satisfied (as is the case by analogy in the present matter in relation to the amount of chronic inflammation).
Accordingly, the present matter is distinguishable from Kattenberg. The required quantity in the SOP (chronic inflammation as specified for at least 5 years) does not exist on either party’s assessment. Accordingly, there is no “at least five years” to examine for the purpose of assessing whether it could be “related to the relevant service” as required by paragraph 10 of SOP No. 90 of 2018 by applying a material contribution or but for test.
(b) Secondly, and as is apparent from the above, Kattenberg does not apply to provide an exception to the requirement in paragraph 9 of the applicable SOP No. 90 of 2018 that “at least one of the following factors must as a minimum exist…”. I.e that the SOP factor must exist.
It does not provide for an exception that one can proceed to examine the relationship between an unsatisfied SOP factor and the claimed injury or disease and thereby circumvent paragraph 9 of SOP No.90 of 2018. It relates to a different step in the process of consideration of the SOP. That is, having identified a SOP factor that exists, how does one apply paragraph 10 in the SOP No. 90 of 2018 in terms of the relationship between the SOP factor and service (not the SOP factor and the claimed injury or disease). Accordingly, the applicant’s closing submission, with respect, misconceives the application of the Kattenberg principle in seeking to apply the principle between an unsatisfied SOP factor and the claimed injury or disease.
[85] Respondent’s Closing submissions dated 28 January 2022, pages 10-11, paragraphs 4.21 – 4.23.
It is not disputed that the Veteran’s hernia surgery was performed less than five years before the clinical onset of his non-Hodgkin lymphoma.
While the Veteran’s evidence was that he has experienced chronic inflammation ever since the surgery, the Tribunal notes that, as set out in the Respondent’s contentions above, the medical records before the Tribunal do not indicate that to be the case. It may however be that the medical records do not accurately reflect any ongoing symptoms experienced by the Veteran after his hernia repair surgery. ADF culture often means that it is not unusual for service men and women to get on with the job without complaining. The Veteran’s evidence was that he went back to work a few days after the surgery because that is “what Special Forces do, you get in there and you get through.”
In considering Mr Cullen’s contentions with regards to the way in which the Tribunal should approach its consideration of the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP and having reviewed the Federal Court’s decision in Kattenberg v Repatriation Commission [2002] FCA 412, the Tribunal agrees with the contentions made by the Respondent as set out above. The Tribunal agrees that the Kattenberg case cannot be applied to circumvent the minimum requirements of section 9(25) of the non-Hodgkin lymphoma SOP that chronic inflammation has to be present for at least five years before the date of clinical onset.
Infection with Plasmodium falciparum at the time of clinical onset
For completeness, the Tribunal notes that the Mr Cullen in his opening address at the Hearing made reference to the Veteran seeking to rely on the factor set out in section 9(15) of the non-Hodgkin lymphoma SOP.
To establish that the factor set out in section 9(15) of the non-Hodgkin lymphoma SOP exist, the Veteran must, for Burkitt lymphoma only, have been infected with Plasmodium falciparum at the time of clinical onset of non-Hodgkin lymphoma.
It is not in contention that the Veteran had been diagnosed with Burkitt lymphoma.
The Veteran did not contend that he was infected with Plasmodium falciparum at the time of the clinical onset of non-Hodgkin lymphoma. Further, the Tribunal’s review of the medical documents in evidence did not reveal that any such diagnoses had been made.
Conclusion
Having set out the factual matrix before the Tribunal, the question to be determined is whether a reasonable hypothesis has been raised linking the Veteran’s non-Hodgkin lymphoma to his warlike or non-warlike service. This inquiry is not a question of fact finding but rather, an assessment of the material before the Tribunal.
The Tribunal notes that at the outset of the Hearing, Mr Cullen referred the Tribunal to the decision of Hunt v Repatriation Commission [2019] FCA 1191 (Hunt) which referred to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 in relation to creditability of the Veteran and evidence or lack of evidence. It is unclear exactly what Mr Cullen was intending to submit.
The Tribunal notes that in this matter, it considers the Veteran to be a creditable witness. In the Tribunal’s view, the Veteran approached the Hearing in an open and honest manner and with both grace and willingness to explain to the Tribunal the details of his service, the duties he undertook when on deployment and the conditions he experienced on those deployments. From the Tribunal’s reading of the material before it, it acknowledges that the Veteran has faced enormous challenges since being diagnosed with non-Hodgkin lymphoma and that many of those challenges are ongoing. The diagnosis has not only had major effects on his health, but it also ended his military career and no doubt turned his and his families’ world upside down.
In Hunt, the Federal Court found that the Tribunal had misapplied the prescribed standard of proof in reaching its decision. In relation to the facts of the case before the Federal Court, Steward J provided the following:
[59] Lack of corroborating evidence is also not inconsistent with, or capable of preventing the Tribunal from accepting, the applicant’s evidence on the First and Second Incidents. As Hunt J observed in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 10-11:
It is, of course, important in many cases in determining whether or not the evidence of the taxpayer should be accepted to consider whether it is corroborated … it is not obligatory for a taxpayer … to call all the material witnesses and to produce all the material documents which support his evidence … It is certainly wiser for the taxpayer to do so in most cases so as to ensure that his own evidence is accepted, but even where he does not do so the tribunal of fact may nevertheless be sufficiently impressed with the taxpayer as a witness that his evidence is accepted without such corroboration or without the whole of such corroboration. If his evidence as to his purpose is accepted, then he has discharged his onus of proof whatever corroborative evidence he has or has not called.
There is no requirement of law that a taxpayer on a taxation reference or appeal is obliged to produce other evidence or corroborate his own evidence, nor should there be any rule of practice adopted in such cases by which such corroboration is required. That was apparently a requirement of Canon Law under the influence of Roman Law, but (except in prosecutions for perjury) there is no such requirement in the Common Law: Cross on Evidence, 2nd Aust ed (1979), pars 9.2, 9.3, at pp 183, 184.
Whilst his Honour made such observations in the context of a different statutory scheme, I draw on the general proposition that evidence of an otherwise credible witness, in this case the applicant, can be accepted without corroborative evidence in his favour.
[60] I accept that in view of the factors described above — the absence of corroboration, a statement that Australian Army vehicles were “habitually parked” behind the BEQ and an omission in the 2012 pension application — it could be open to a Tribunal to conclude that the applicant’s claims about the First and Second Incidents may not be true. That is, the facts as asserted could, on the balance of probabilities, be regarded as disproved. But that is not enough to reject a veteran’s claim under s 120(1). Beyond reasonable doubt is an exacting standard and requires a much higher standard of satisfaction than when applying proof on the balance of probabilities.
The Tribunal agrees with the principles referred to by Stewart J, however, notes that in the Hunt case the issue being addressed was how the Tribunal reached its conclusions in relation to being satisfied beyond reasonable doubt that no sufficient ground for making a determination that in that case, Mr Hunt’s injuries or diseases were not service injuries or diseases. Based on the evidence of that case and the SOP requirements, Stewart J applied the principles in Allied Pastoral Holdings to find that the lack of corroborating evidence was not inconsistent with or capable of preventing the Tribunal from accepting Mr Hunt’s evidence.
In the present case, while the Tribunal accepts the Veteran’s evidence, the issue for the Tribunal is that, that evidence did not of itself go far enough to establish that a factor set out in section 9 of the non-Hodgkin lymphoma SOP existed.
Having reviewed the material before it in totality, the Tribunal considers that the material indicates that the Veteran may have and, in some cases, is highly likely to have been exposed to a range of different hazards while serving on deployment. It also indicates that the Veteran may have experienced chronic inflammation after his hernia repair surgery.
Unfortunately for the Veteran, however, is that, while he may have been exposed to the different chemicals or substances dealt with by the factors set out in sections 9(17), 9(20), 9(21), 9(22) and 9(24) of the non-Hodgkin lymphoma SOP in circumstances of his service, the required level of exposure must be met before the relevant factor could be said to exist. Further, while he may have had chronic inflammation as specified in the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP, the required time frame of which any such chronic inflammation was required to have been experienced before the onset of non-Hodgkin lymphoma is a mandatory requirement.
In Repatriation Commission and Bey (1997) 79 FCR 364, the Full Federal Court on pages 372 to 373 observed that:
… the mere possibility of a connection between a disease and war service is sufficient to constitute a ‘reasonable hypothesis’ on the ground that any hypothesis is no more than a possibility ….. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker …..
A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
The material before the Tribunal does not provide the extent of exposure that the Veteran may have experienced in relation to the factors set out in sections 9(17), 9(20), 9(21), 9(22) and 9(24) of the non-Hodgkin lymphoma SOP. The medical records, information provided by the Department of Defence, report by Dr Tinker and evidence provided by the Veteran do not contain sufficient information to raise the actual required quantity of exposure to say that the Veteran’s hypothesis fits within the template found in the SOP.
The Veteran does not dispute that he was not experiencing chronic inflammation as a result of his hernia repair surgery for at least 5 years prior to the clinical onset of his non-Hodgkin lymphoma for the purposes of the factor set out in section 9(25) of the non-Hodgkin lymphoma SOP.
There is no evidence before the Tribunal that the Veteran had at any stage or at the time of the clinical onset of his non-Hodgkin lymphoma, Plasmodium falciparum for the purposes of the factor set out in section 9(15) of the non-Hodgkin lymphoma SOP.
Therefore, having considered the material before it in totality, the Tribunal finds that the Veteran’s hypothesis is not a reasonable hypothesis in that it does not fit with the template found in the non-Hodgkin lymphoma SOP.
Accordingly, step 3 of the Deledio Principles has not been met. Further, as Step 3 of the Deledio Principles has not been met, it follows by logic neither is Step 4.
DECISION
The Tribunal acknowledges and appreciates the Veteran’s military service and the sacrifices he made in rendering it.
As mentioned earlier, the Tribunal recognises the beneficial nature of the suite of Veterans’ legislation of which the MRC Act is part. The Tribunal considers it important to note that the policy underpinning that legislation is to deal fairly and generously with those Australians who have served their country and who have suffered physically or emotionally as a result of that service.[86]
[86] See Duff and Repatriation Commission [2017] AATA 1405 at [38]-[39].
While acknowledging this starting principle, the Tribunal is mindful that in making a decision, it must also apply the legislation as in place, which in this matter includes the requirement for the Tribunal to be satisfied that that a factor set out in section 9 of the non-Hodgkin lymphoma SOP existed.
The material before the Tribunal must show more than the existence of the principle of a relevant factor, it must also show that the requirements of the factor have been met. It is on this point that the Veteran’s application has failed. As previously outlined, it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[87]
[87] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [63].
In this case, the Tribunal suspects that the reason that material as to how the requirements of the factors set out in section 9 of the non-Hodgkin lymphoma SOP could be met to establish a reasonable hypothesis is not before it, is because that material is not available. Collecting such evidence throughout his military service was not at the forefront of the Veteran’s mind while serving on deployment.
Perhaps the most insightful statement made in these proceedings was that of Mr Cullen in the Veteran’s closing submissions:[88]
The minute signed by Lt Col DC Fortune sets out environmental hazards encountered by SOTGVI personnel while serving in Afghanistan.
Given these Defence OHS Incident Reports it clearly sets out the hazards encountered but those reports to not set out the quantities of exposure. It may be years after the war in Afghanistan is over before any real data on exposure to radiation is quantified. This radiation exposure seems to replicate the effects that “Agent Orange” had on troops serving in Vietnam.
[88] Applicant’s closing submissions dated 4 January 2022, page 1.
Should the exposure rates set out in the non-Hodgkin lymphoma SOP be reviewed in the future or further evidence become available in relation to quantities of exposure to the relevant hazards for ADF personnel who served on deployment in Afghanistan or Iraq, it may be that the Veteran may decide to pursue a new claim.
For the reasons set out above, the Tribunal finds that it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Veteran’s non-Hodgkin lymphoma, chronic rhinosinusitis and bilateral blepharitis conditions are service diseases.
As such the Tribunal finds that liability does not exist under section 23(1) of the MRC Act in relation to the Veteran’s claimed conditions of non-Hodgkin lymphoma, chronic rhinosinusitis and bilateral blepharitis.
Accordingly, the decision under review is affirmed.
| I certify that the preceding 144 |
............................[SGD]................................
Associate
Dated: 31 August 2022
Date of Hearing:
Final Submissions:
1 September 2021
3 February 2022
Advocate for the Applicant: Mr Ken Cullen Solicitor for the Respondent:
Mr Matthew Hawker
Sparke Helmore Lawyers
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