Creffield and Repatriation Commission
[2010] AATA 418
•7 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2008/4508
Veterans' Appeals Division )
Re: Constance Creffield
Applicant
And: Repatriation Commission
Respondent
TRIBUNAL:Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.
DATE: 7 May 2010
PLACE: Brisbane
DECISION:The Tribunal affirms the decision under review.
........................[Sgd]......................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow’s pension - cancer of the jejunum – effect of H. Pylori – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth) s 120
REASONS FOR DECISION
| 8 June 2010 | Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member |
The Tribunal gave oral reasons at the time it affirmed the decision in this case. The applicant has subsequently asked for a written statement of reasons for the decision pursuant to s 28 of the Administrative Appeals Tribunal Act 1975. What follows is based on the transcript of the hearing.
Constance Creffield has applied for a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (“the VEA). Her claim must be assessed in accordance with s 120 of the Act.
Mr Creffield, the applicant’s late husband, served in the Royal Australian Air Force (“the RAAF”) in the Pacific during WWII. He was stationed for a time on the island of Morotai, which was characterised by very primitive living conditions and bad food. He experienced bowel problems on a constant basis after the war. Mrs Creffield spoke of constant irritation. Some of those problems were recognised and accepted as being service related.
Mr Creffield died on 19 September 1995. The death certificate lists cancer of the jejunum as the cause of death.
In order to assess the claim, we must first reach a view about the kind of death that the veteran suffered. Virtually all of the material points to one conclusion: the veteran died from cancer of the jejunum. That is not to say he did not experience other bowel complaints over time; however the death certificate and the medical reports in the T-documents clearly point to cancer of the jejunum as the cause of death.
We did consider an intriguing alternative possibility: could H.Pylori bacteria have been a cause of death? We note there is evidence suggesting the late veteran would have had, H.Pylori bacteria in his system. The hearing was adjourned so that further expert medical evidence could be obtained on this point. We were subsequently provided with the report of Professor Paterson who concluded, in effect, that one does not die from H.Pylori bacteria. The bacteria can be a factor in the development of many diseases and conditions, but there is no reason to believe it could kill, or did kill, the veteran.
If the kind of death is cancer of the jejunum, we are required by law to apply the relevant Statement of Principles (“SoP”) that has been developed by the Repatriation Medical Authority (“the RMA”). Mrs Creffield has been very critical of the results of the RMA’s endeavours. Unfortunately, that is not something upon which we are able to comment, as we must work with the system and the law that parliament has given us.
The relevant SoP is No 40 of 2004, amended by No 19 of 2010. The amendment was made after we adjourned on the previous occasion. In the amendment, the RMA demonstrates that it has turned its attention to the role of H. Pylori bacteria in the development of bowel conditions. It accepted that H. Pylori bacteria might be a factor in the development of cancers of the first part of the duodenum only. It is quite specific: there is no mention of cancers of the jejunum. It follows that the applicant is unable to satisfy factor 5(db).
Sadly for Mrs Creffield, even when taken at its highest, the evidence does not satisfy any of the other factors. The closest, most intriguing possibility is the new factor 5(da) which refers to the consumption of at least 300 grams of specified food for at least 20 years before the clinical onset of the condition. While the late veteran in all likelihood did consume 300 grams of specified foods while he was serving on Morotai, that is not a long period. The other possibility raised was that the late veteran could not obtain clinical management of his condition during his service, but there is no evidence that he had the condition at that point or any condition that the SoP recognises as being as a factor in the development of cancer of the jejunum.
The Tribunal affirms the decision under review.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.
Signed: .........................[Sgd]..................................................
Patrick MacDonald, Associate
Dates of Hearing 13 May 2009
7 May 2010
Date of Decision 7 May 2010
Date of Written Reasons 8 June 2010
Applicant Self-represented
Advocate for the Respondent Mr J Stoner
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