Cronin and Repatriation Commission - [2009] AATA 712

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 712

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/3307

VETERANS’ APPEALS DIVISION )
ReNorma CRONIN

Applicant

And Repatriation Commission

Respondent

DECISION

TribunalMr R P Handley, Deputy President
Date21 September 2009
PlaceSydney
DecisionThe decision under review is affirmed.
..............[sgd]................................
Mr R P Handley
Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – whether systemic lupus erythematosus is war-caused - exposure to sunlight or ultraviolet light at a level sufficient to induce sunburn – clinical onset of symptoms greater than two months following exposure – hypothesis of causal link too remote or tenuous and is not a reasonable one - decision under review is affirmed

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RELEVANT ACT

Veterans’ Entitlements Act 1986 (Cth)

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CITATIONS

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

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OTHER AUTHORITIES

Statement of Principles concerning Systemic Lupus Erythematosus Instrument No 86 of 2007, as amended by No 41 of 2009

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REASONS FOR DECISION

21 September 2009

Mr RP Handley, Deputy President

Norma Cronin served in the Australian Women’s Army Service from 3 August 1943 to 20 June 1946, which is considered eligible war service. She made a claim for disability pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) in respect of systemic lupus erythematosus (SLE) which was rejected by the Repatriation Commission (the Commission) on the ground that it was not related to her period of eligible service. The Commission’s decision was affirmed by the Veteran’s Review Board (VRB) and Mrs Cronin has applied to the Tribunal for a further review.

issues

Mrs Cronin contends that the SLE from which she suffers was caused by exposure to the sun during her army service. The Commission accepts that she suffers from SLE in accordance with a diagnosis provided by Associate Professor Simon Roger, Renal Physician, in a letter dated 1 September 2003. While Professor Roger also said that “sun exposure may result in activation of her condition”, the Commission contends that the condition is not war-caused.
In these proceedings, there is no dispute that Mrs Cronin suffers from SLE. The task for the Tribunal is to consider whether the condition was war-caused. In doing so, the Tribunal must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before the Tribunal conforms with one of the factors in the SoP. If it does, the Tribunal must consider whether it is satisfied, beyond reasonable doubt, that the condition is not war-caused. (The approach adopted by the Tribunal in relation to the application of, relevantly, s 120 and s 120B of the Act is that set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.)
The applicable SoP concerning SLE is No 86 of 2007, which took effect from 4 July 2007, as amended by No 41 of 2009, which took effect from 1 July 2009. The first issue, then, is whether any hypothesis raised by the material before the Tribunal conforms with one of the factors in the SoP. SoP No 86, as amended, provides, as one of the factors establishing causation:
6. …
(da)being exposed to sunlight or ultraviolet light at a level sufficient to induce sunburn at least 24 hours, but not more than two months, before the clinical onset of systemic lupus erythematosus; …
At the Tribunal hearing, William Cronin represented his wife by conference phone, and Timothy O’Reilly represented the Repatriation Commission. The Tribunal experienced difficulties with the conference phone, which cut out on three occasions during the hearing. On the last occasion, when the Tribunal tried to reconnect with Mr Cronin, there was no reply. However, by this stage, both parties had, in the Tribunal’s opinion, set out the main points on which they wished to rely, and the Tribunal determined to proceed to make a decision without hearing any further oral submissions from the parties on the basis of the oral and written submissions already made.
Mr Cronin said his wife’s condition was caused by her being exposed to the sun during her service in the army at Stockton. The Commission has accepted that this same exposure to the sun also caused the melanomas which the Commission has accepted as war-caused, and Mr Cronin contended that it should also accept that the sun exposure caused her SLE. Mr Cronin referred to the evidence provided by Professor Roger who has said that sun exposure may result in the activation of his wife’s condition. Mr Cronin referred the Tribunal to an earlier decision made by the VRB on 25 August 2000, when Professor Roger said in evidence that exposure to sunlight can cause exacerbation of an existing lupus condition. However, I note in the VRB’s statement of reasons for that decision, at p 4, it said that Professor Roger “stated that, on the balance of probabilities, it could not be said that the veteran’s exposure to sunlight in 1943-5 was related to the veteran’s present condition”.
Mr Cronin noted that the relevant SoP has been amended to recognise that exposure to sunlight can cause SLE, but said there is no specific evidence as to when his wife first suffered the disease.
Mr O’Reilly pointed out that the new factor in the amended SoP that applies in respect of SLE, cl 6(da), while recognising that exposure to sunlight or ultraviolet light may be sufficient to connect SLE with the circumstances of person’s service, states that this only applies where the exposure to sunlight or ultraviolet light was at a level sufficient to induce sunburn at least 24 hours, but not more than two months, before the clinical onset of SLE. Mr O’Reilly said it appears that the clinical onset of Mrs Cronin’s SLE was probably in the late 1990s. Thus, a considerable time elapsed between the time of Mrs Cronin’s war service and the clinical onset of her SLE. The Commission contends there is no evidence establishing a causal link between Mrs Cronin’s war service and the clinical onset of the condition and that the VRB decision under review should be affirmed.
As stated above, the first issue for the Tribunal in this case is whether any hypothesis raised by the material before the Tribunal conforms with one of the factors in the SoP. At this (third) step in the approach prescribed by the decision in Deledio, the Tribunal does not engage in a fact-finding exercise but, rather, considers the material before it with a view to whether that material is consistent with any of the factors set out in the relevant SoP.
The material before the Tribunal includes the evidence provided by Professor Roger, referred to above, and a pamphlet from the Lupus Association of NSW provided by Mrs Cronin. The pamphlet describes SLE as “an auto immune disease … probably best described as a disease that causes inflammation in the small blood vessels in the connective tissue”. With regard to what causes SLE, the pamphlet states:
It is felt that both genetic and environmental factors are important in the causation of lupus. There is a definite link between lupus and certain hormones, evidenced by the disease’s preference for women of child-bearing age, but the relationship is not completely understood. As well, some external factors such as certain medications, viruses, sun exposure, stress, as well as some unknown environmental factors, are thought to trigger the onset of the disease. However, until research scientists can fully understand the functioning of the immune system, the cause of lupus will not be known.
In Mrs Cronin’s case, the first relevant medical evidence appears to be a report from Professor Roger dated 6 January 2000. I also note that in Mrs Cronin’s claim in respect of SLE, dated 10 February 2000, she stated the date of onset as being 3 February 2000. The Commission has therefore assumed that the clinical onset of the condition was probably in the late 1990s.
The material before me does not conform with a hypothesis connecting the SLE suffered by Mrs Cronin with her war service. None of the material is consistent with the only relevant factor, cl 6(da), in SoP No 86 of 2007, as amended by SoP No 41 of 2009, in so far as that factor requires the exposure to sunlight or ultraviolet light must have occurred not more than two months before the clinical onset of SLE. In Mrs Cronin’s case, the material before me indicates that the clinical onset of SLE occurred in the late 1990s, a significant time after the end of her eligible war service in 1946. Thus, in my view, the hypothesis is too remote or tenuous and is not a reasonable one.
The decision under review must therefore be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed: ................[sgd].........................................................
A Veness, Associate

Date of Hearing:  14 September 2009
Date of Decision:  21 September 2009
Applicant representative:                   Mr W Cronin
Respondent representative:              Mr T O’Reilly