Duncan and Repatriation Commission

[2003] AATA 1014

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/1269

VETERANS'      APPEALS      DIVISION		)
Re		RUBINA VERA DUNCAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date8 October 2003

PlaceMelbourne

Decision The decisions made by the Veterans’ Review Board on
23 September 2002 2002 are affirmed.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS – Estate and widow’s application; whether claim for “breathing problems” constituted chronic bronchitis and emphysema; whether smoking cigarettes and treatment for “common cold” and “bronchitis” in service satisfied Statement of Principles; whether death by prostate cancer and bony metastases associated with animal fat consumption; whether Statement of Principles satisfied; decision affirmed.

Veterans’ Entitlements Act 1986 s120, s120A

Statement of Principles No.73 of 1997

Statement of Principles No.84 of 1999

Statement of Principles No.69 of 2002

Statement of Principles No.84 of 1999

Statement of Principles No.29 of 2001

Statement of Principles No.25 of 2001

Benjamin v Repatriation Commission (2001) FCA 1879

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) FCA 711

Fogarty v Repatriation Commission (2003) FCAFC 136

REASONS FOR DECISION

8 October 2003   Mr J Handley, Senior Member

1.      This is an application where Mrs Duncan claims on behalf of the estate of the late George Hawton Hawton Duncan and in her own right as his widow.

2.      The late Mr Duncan made a claim upon the respondent on 9 March 2001 for acceptance of the conditions of bilateral sensorineural hearing loss, bilateral tinnitus, impotence and “breathing problems”.  Mr Duncan died on 1 April 2001.  The respondent made a decision on 6 June 2001 rejecting his claims.  The Veterans’ Review Board (“the VRB”) affirmed that decision on 23 September 2002.  The VRB made its decision by reference V01/1122.  Mrs Duncan pursues that application on behalf of the estate of the late Mr Duncan.

3.      With respect to her claim as widow, which sought a finding of a relationship between service and death, the respondent decided on 18 June 2001 to reject the claim.  The VRB also decided on 23 September 2002 to affirm the decision made by the respondent.  The VRB made its decision by its reference V01/1170.

4.      The hearing of both applications commenced in Mildura on 21 May 2003.  Mr De Marchi appeared on behalf of Mrs Duncan and Mr Douglass appeared on behalf of respondent.

5.      With respect to the estate application, Mr De Marchi said that the claim for impotence was withdrawn.

6.      With respect to the claim of bilateral sensorineural hearing loss and tinnitus, Mr De Marchi acknowledged that an audiogram had not been performed in the Veteran’s lifetime and the extent of hearing loss - if any - was not known.  He submitted that by reason of the deceased having been a member of the Navy and working in a boiler room stoking, the Tribunal “should take judicial notice of the noise levels at sea”.

7.      The condition described as “breathing problems” was submitted as falling within Statement of Principles No.73 of 1997 entitled “Chronic Bronchitis and Emphysema”. Mr De Marchi relied on factors 5(a)(i) and (ii) and (b) which are recorded as follows:

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person’s relevant service are:

(a)for chronic simple, chronic mucopurulent or asthmatic bronchitis only,

(i)being exposed to airborne irritants resulting in acute respiratory symptoms within the 48 hours immediately after that exposure, within the year immediately before the clinical onset of chronic bronchitis; or

(ii)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation.

(b)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.

8.      With respect to the application brought by Mrs Duncan as a widow, it was submitted that a relationship existed between the service of the deceased, the development of chronic bronchitis and emphysema and his death.

9.      

Mr De Marchi referred to the death certificate found at page 30 of the

T- documents where the cause of death is recorded as:

Respiratory arrest - minutes; Acute blood loss - 12 hours; Retroperitoneal haemorrhage - 24 hours; Carcinoma prostate - 6 months.

10.     When asked to comment upon whether he would pursue an association between carcinoma of the prostate and death, Mr De Marchi said the only applicable factor would be 5(c) of Instrument No.84 of 1999 entitled “Malignant Neoplasm of the Prostate”, which reads as follows:

Increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.

11.     Whilst it was not referred to during the hearing, it is now noted that Instrument No.69 of 2002 amends the definition of animal fat as it previously appeared on Instrument No 84 of 1999.  In the former Instrument, “animal fat” is defined at paragraph 8 as:

“Animal animal fat” means fat contained in or derived from meat, other flesh or offal from animals (including birds), and diary products.

12.     The amending definition of “animal fat” in the latter Instrument reads as follows:

“Animal animal fat” means fat contained in or derived from:

(i)meat, other flesh or offal from animals (including birds but excluding seafood),

(ii)diary products, or

(iii)eggs from birds.

13.     The amending Instrument (No.69 of 2002) was issued on 10 October 2002.  It is noted that both Instruments with respect to malignant neoplasm of the prostate were in force during the assessment period (the claim for widows’ pension was made on 5 June 2001).

14.     The late Mr Duncan was a member of the Royal Australian Navy between 3 March 1941 and 14 August 1946.  The whole of his service was “operational” and both applications will therefore be determined upon the beneficial standard of proof.

Vera Rubina Duncan

15.     Mrs Duncan said that she married her husband in 1952 after he was discharged from service.  She said that she did not know of his diet prior to service but said that she had made enquires of her husband’s sister who said that her husband “ate ordinary meals” prior to enlistment.  She said her husband ate roast meals after marriage but he had no particular liking for fatty foods.  He enjoyed eating meat but had no particular liking for ice-cream or cheese.

16.     With respect to her husband’s service involving stoking boilers, she said that he did not “talk much about this job”..  She said that he did not speak to her about conditions on board ship.

17.     With respect to her husband’s smoking habit, she said that so far as she was aware her husband commenced smoking during service.  She said that he ceased smoking in 1995 and had previously been smoking a “full packet” of cigarettes per day.  She was confident that her husband smoked until 1995 because a son of their marriage – Bruce – also smoked cigarettes and he ceased in 1996 and she recalled that her husband ceased 12 months previously.  She also said that her husband smoked a pipe.

18.     Mrs Duncan was shown pages 27 and 28 of the T-documents where it is recorded that the reasons why her husband commenced smoking cigarettes in service were “fear from life threatening experiences, eg. mine clearing, bombing and straffing, loneliness, advice from senior people to smoke to relieve anxiety of combat operations”.   When Mrs Duncan was shown those pages, she said the handwriting was not that of her husband.  She said that he did not ever speak to her during their marriage about these events.

19.     With respect to her husband’s “breathing problems”, Mrs Duncan recalled that when she and her husband married in 1952 his chest was “not too bad”.  She recalled that he would suffer “heavy colds” from time to time but he would not attend a doctor.  She recalled that he would cough but she could not remember whether it was productive.  Mrs Duncan said that after 1956 when she and her husband moved from one farm to another, he became tired and short of breath and needed assistance operating the farm.  She recalled that he became short of breath when walking long distances.  She said “towards the end” he found it difficult to breathe and was only able to work half days.  She said he rested most afternoons.  (It became apparent that “the farm” was a citrus orchard comprising orange and lemon trees).  She said that her husband needed assistance in maintenance over the fruit block and picking fruit.

20.     Mrs Duncan said that her husband ceased all activities about six 6 months before he died.  She could not recall if he had difficulty breathing when he was admitted to hospital shortly prior to his death because “he was heavily medicated because of pain”.

21.     With respect to her husband’s hearing loss she said that he had told her that during his lifetime that he did suffer from “ringing in his ears” but she acknowledged that he did not ever attend for an audiogram.

22.     In cross-examination Mrs Duncan said that her husband did suffer from “bad colds” but they were not regular.  She said he did not complain when ill, that he seldom attended doctors and used to say, when he was sick, that “it would right itself”..  Nonetheless she agreed that the doctors notes obtained indicated that he had attended for treatment of his eyes, back and for complaints of dizziness.  Mrs Duncan said for him to attend a doctor he would “have to be bad”.

23.     Mrs Duncan said that when her husband did begin to “slow down” he had not been diagnosed with prostate cancer.  She said that he started to slow down some years before that diagnosis was made.

24.     Mrs Duncan was also asked to comment upon notes within the Austin Hospital records of February 2001 where her husband had been referred for palliative radiotherapy because of multiple bony metastases.  She said that her husband was then suffering a great deal of pain “in his bones” but could not say whether that treatment affected his breathing.  She recalled that her husband had “a lot of pain and difficulty in getting around”.

Bruce Duncan

25.     Mr Duncan is the son of the late Veteran and Mrs Duncan, the applicant in these proceedings.

26.     He recalled that his father ceased smoking tobacco about twelve 12 months before he ceased in 1996.  He recalled that his father was a “heavy smoker” but did not know the extent.  He recalled that his father had smoked tobacco for as long as he could remember and had been told by his father that he had started to smoke during service.  He said that his father did not tell him why he did start to smoke.

27.     Mr Duncan recalled that in the last few years of his father’s life that he would rest most afternoons because “he ran out of energy and run out of breath”. He said that his father used to do “nothing” in the afternoons and recalled that in the last six 6 months of his father’s life he did “nothing”.

28.     With respect to his father’s service, Mr Duncan said that he was aware that his father was initially a stoker but then became a Chief Petty Officer.  He knew little of his father’s duties in the Navy except that his father had told him that if there was a risk of bombing, he and others would run on the top deck to be ready to dive over the side.

29.     Mr Duncan confirmed that his father did have a hearing loss and communication would frequently need to be repeated.  He did not know if his father suffered from “ringing in his ears”.  He recalled that his father had told him he had served on board “Corvette” motor vessels and he understood that those vessels were noisy.

30.     At the conclusion of the evidence of Mr Duncan, Mr Douglass on behalf of the respondent, conceded that the deceased did start to smoke during service and the quantity and duration of the smoking satisfied the Statements of Principles.  He also conceded that there was a temporal and causal connection between smoking and service.

31.     However the respondent maintained that there was no medical evidence readily available to confirm that the deceased did suffer from any respiratory illnesses or diseases.  He said that it was likely that the deceased was breathless because of his prostate cancer.  Nonetheless Mr Douglass acknowledged that the respondent had had difficulty obtaining the clinical notes from Dr Russell, the deceased’s former treating general practitioner who had recently retired.  He said that the Commission was pursuing its enquires and was hoping to have the records without further delay.

32.     It was the intention of the respondent to forward the notes of evidence following the hearing in Mildura, together with all available clinical material, to Professor Cade or another thoracic specialist.  Mr De Marchi indicated that he intended to obtain a report from Dr Byron Collins and also from Dr Paine, a respiratory physician.

33.     Subsequent to the hearing in Mildura, Mr De Marchi filed a report by Dr Byron Collins, a consulting pathologist, and the respondent filed a report by Professor Cade, the Director of Intensive Care at Royal Melbourne Hospital.  At a directions hearing on 6 August 2003 both parties indicated that they intended to rely on the evidence heard in Mildura and the medical reports and other clinical data lodged.  Both parties therefore regarded the hearing as having concluded.  Both parties were content to lodge written submissions.  Directions were issued to have the applicant’s written submissions lodged by 3 September 2003 and the respondent’s written submissions, on or before 14 days subsequent to that date.

34.     At the date of delivery of these reasons, the applicant’s solicitor has not lodged written submissions.  A report from Dr Paine (refer above) has not been lodged.  The diagnosis therefore of injury or disease constituting the claimed condition of “breathing problems” remains unclear.

35. These reasons therefore have been prepared upon the basis of the evidence heard in Mildura, the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act, the reports of Dr Byron Collins and Dr Cade and copies of the clinical notes of the Mildura Base Hospital, the Mildura Private Hospital and the Repatriation Medical Centre.

36.     The T-documents contained pre- and post-discharge medical data.  The examination of 17 January 1941, immediately prior to enlistment (page 3), is unremarkable.  The record of sickness and injury during service found at page 6 records the deceased presenting on 1 May 1941, 22 December 1943, and 27 June 1943 with the condition of “common cold”.  On 10 February 1943 he presented with the condition of “bronchitis”..  Following each presentation a period of incapacity was certified being seven 7 days at maximum and two 2 days at minimum.  Upon discharge (pages 8 and 9) the only “disease, wounds or injuries suffered” during service was “bronchitis”..  The report of the medical officer upon discharge is otherwise unremarkable and blood pressure was recorded at 110/70.  Upon examination of the “lungs, heart” and “ears and hearing” the letter “N” is recorded.  I interpret that recording to mean “normal”.

37.     At pages 10-14 of the T-documents there is a copy of a document entitled “Extract from Daily Medical Record Books”.  I understand this document to be a summary of the illnesses, and or, injuries for which the deceased presented during service.  It contains references to the deceased presenting for treatment of a boil on his neck, a right eye stye, common cold, sore ears, boil on back, abscess of lower lip, neuritis of neck, headache, scalp laceration, sore and infected hand and bronchitis.

38.     In the claim made by the late Mr Duncan (T-6 page 16-28) a number of disabilities are recorded in support of an entitlement for pension.  Those disabilities are “hearing”, “tinnitus”, “cataracts”, “impotence”, “breathing problems”.  Against those claimed disabilities, the deceased’s treating general practitioner, Dr Russell of Mildura, has made comments which are intended to be his “medical diagnosis”.  Against the disabilities of “hearing”, “tinnitus”, “impotence”, and “breathing problems”, Dr Russell has recorded “I have not been consulted about this”.  Against the disability of “cataracts”, he confirmed as a medical diagnosis that the late Mr Duncan did suffer from bilateral cataracts which were extracted on 28 April 1998 and 23 June 1998.

39.     

Mr Duncan recorded that his disability of “hearing” was contributed or caused in service by reason of “acoustic trauma due to gunfire, bombing and straffing”.  He recorded that he became aware of that disability in 1975.  A similar explanation was recorded with respect to the disability of “tinnitus”..  The conditions of “cataracts”, “impotence” and “breathing problems” were recorded by him as being related to service by the recorded explanation of “operational service related smoking”.  He recorded that he became aware of cataracts in 1990, became aware of impotence in 1975 and became aware of “breathing problems” in 1960.  At page 23 of the

T-documents under the sub-heading of “Details of your medical treatment” Mr Duncan recorded that the disabilities of “hearing”, “tinnitus”, “impotence” and “breathing problems” were “not yet treated”.

40.     The notes of the Mildura Base Hospital commence in 1998 when the deceased’s cataracts were removed.  Page 15 records that the medications being consumed by the deceased were for “arthritis” and against a “past history” the word “nil” appears.

41.     

There is a note at page 22 that the late Mr Duncan was treated on 17 August 1982 for a pterygium of his left eye.  The following pages refer to the treatment of that condition which appears to have involved admission as an

in-patient and surgical removal.  Out-patient notes at pages 36-40 inclusive refer to removal of a lesion from the deceased’s chest and left forearm which was subsequently diagnosed as a basal cell carcinoma of the chest and a solar keratosis of the arm.  In July 1985 Mr Duncan was admitted for a scratch wound to his right eye.  I can find nothing upon my interpretation of the notes of the Mildura Base Hospital of the late Mr Duncan being treated for any of the conditions claimed by him.

42.     The copy of the file of the Austin & Repatriation Medical Centre contains a letter from an ophthalmic surgeon in Mildura of April 1986 reporting “sore and irritable eyes”.  The file also contains copies of reports of radiologists following x-rays of the cervical, thoracic and lumbar spine of the deceased in 1986.  An x-ray taken on 5 February 2001 of the deceased’s pelvis, cervical, thoracic and lumbo-sacral spine found “extensive sclerotic metastatic deposits consistent with prostate cancer”.  On 7 February 2001 Mr Duncan was admitted with the diagnosis recorded as “metastatic prostatic cancer, anaemia, neuropathic pain, oesophagitis, dehydration, constipation”.  The admitting doctor recorded that the clinical features of the late Mr Duncan upon admission were of a 78 year old male with metastatic prostatic cancer.  The admission notes record a past history of the late Mr Duncan having undertaken a trans urethral resection of the prostate (“TURP”) in November 2000 with subsequent neck and right shoulder pain.  Arrangements were made to provide Mr Duncan with radiotherapy and palliative care.  The nursing notes recall frequent complaints by Mr Duncan of pain and the administration of pain-killing medication.  Towards the end of his admission, arrangements were made by the hospital to liaise with palliative and assessment teams in the Sunraysia district.  Mr Duncan was discharged from the Austin & Repatriation Medical Centre on 21 February 2001 for return to Mildura by ambulance.  Notes of the Department of Radiotherapy at the Austin & Repatriation Medical Authority record that Mr Duncan had undertaken radiotherapy for treatment of the posterior cervical and thoracic vertebrae.  The Department of Nuclear Medicine at the hospital reported on 19 February 2001 that a whole body scan revealed “diffused increased tracer uptake within the thoracic and lumbo-sacral spine, most ribs, proximal femora and humeri, and both AC joints”.  The conclusion of the Nuclear Medicine registrar Registrar was of the deceased having appearances of “diffuse metastatic disease of the bones”..  In a letter to Dr Russell in Mildura the radiation oncologist, Dr Feigen, reported on 21 February 2001 that Mr Duncan was being discharged to have palliative treatment in Mildura.  I can find nothing within the notes of the Austin & Repatriation Medical Centre which refer to any of the conditions claimed by the deceased upon the respondent.

43.     The file of the Mildura Private Hospital records the late Mr Duncan being admitted on 30 November 2000 for resection of his prostate upon referral from Mr Cato, a consultant urologist in Mildura.  Upon admission a past medical history taken from Mr Duncan was recorded as “appendicectomy, tonsillectomy, right and left cataract excision”.  On admission Mr Duncan had complained of a “painful right shoulder and arm, numbness in fingers”.  Histopathology reporting on 20 December 2000 revealed a history of prostate cancer with “poorly differentiated adenocarcinoma” and “lymphatic invasion”.  Arrangements were made to discharge Mr Duncan on 22 December 2000.

44.     

Mr Duncan was re-admitted on 22 March 2001 with a diagnosis recorded of prostate cancer.  Mr Duncan was admitted under the care of Dr Hartley.  Admission was essentially for palliative care.  Dr Russell reported to Dr Hartley that Mr Duncan was being admitted with disseminated carcinoma of the prostate.  It was reported that Mr Duncan was “so weak now he is unable to make it to the toilet”..  It was reported that he had completed a course of palliative radiotherapy and was presently complaining of shoulder pain.  The remainder of the file of the Mildura Private Hospital contains nursing notes of observations of Mr Duncan whilst he was an

in-patient until his demise on 1 April 2001.  Save that the notes of the Mildura Private Hospital refer to the administration by nasal prongs of oxygen on 25 March and 1 April, I can find no other reference within the notes of this hospital to any of the conditions claimed by Mr Duncan upon the respondent.  I am unable to conclude that the administration of oxygen, as noted by the nursing staff, is related to the condition of “breathing problems” claimed by Mr Duncan which he associated with a past history of cigarette smoking.  To the extent that the occasion of administration of oxygen on 1 April was within a few hours of the death of Mr Duncan at a time when he was also receiving intravenous morphine, I have assumed that the oxygen then administered was to provide a degree of comfort to Mr Duncan because it was apparent at that time that his death was eminent.

45.     

The death certificate records the certifying doctor as Dr Hartley, the doctor under who Mr Duncan was admitted to the Mildura Private Hospital on 22 March 2001.  The medical certificate completed by him (which was forwarded to the Registrar of Births, Deaths & Marriages) which apparently gives rise to the issue later of a certified extract of death records the causes of death in identical terms to those causes which appear in the death certificate found at page 30 of the

T-documents (refer paragraph 9 earlier).

46.     In the claim made by Mrs Duncan as the widow of the late Mr Duncan (page 35) she certifies that she is the widow of the late Mr Duncan.  She recorded the most recent medical treatment commenced in December 2000 at the Mildura Private Hospital and the subsequent treatment for “cancer prostate” and “bone cancer”..  She also recorded that her late husband had been treated by Dr Russell “over long periods” for “hip and back problems”..  When asked to describe the cause or the contribution to her husband’s death, Mrs Duncan recorded “I believe my husband’s early death was brought about by his service to his country during the Second World War.  I believe his cigarette smoking etc. contributed to this – see attached statement”.  A “statement” as described by Mrs Duncan is not contained within the T-documents.  The claim made by her is dated 9 April 2001.  There is another report completed by her on 20 April 2001 (I am unclear whether she intends to refer to this document as the “statement”).  It records that her husband commenced smoking cigarettes because of “war-time stress, pressure from mates, ration cigarettes etc”.  She records that her husband smoked 25 cigarettes per day of tailor made cigarettes and 4 ounces per week of roll-your-own tobacco.  She recorded that he “recently” stopped smoking permanently and was then smoking 30 cigarettes per day.  She recorded that her husband’s smoking habit had changed because of “stress”.

47.     The Department of Veterans’ Affairs decided on 6 June 2001 (in a letter to Mrs Duncan) that it had decided to accept the claim made by her husband with respect to his acquired cataracts.  The remaining claimed conditions of bilateral sensorineural hearing loss, bilateral tinnitus, impotence and breathing problems were refused because “investigationInvestigation….. has failed to show any condition to be present”.  Pension was granted with respect to the conditions of cataracts at 10% of the general General rate Rate with effect from 9 December 2000 but cancelled on 2 April 2001 being the day after the death of Mr Duncan.

48.     In her appeal to the Veterans’ Review Board (page 51), Mrs Duncan sought to appeal the decision rejecting the claim made by her late husband for disability pension and a decision made by the Department of Veterans’ Affairs to also reject her claim for widow’s pension.  She recorded that she was “unhappy” with the decision rejecting the claims because:

My late husband often complained of pains in back and arms, and we realise now that his main role in the Navy was an engine room leading stoker with asbestos being a contributor to his problem.  We learned later that asbestos was harmful when subjected to continuous work in that environment.  He served right through war mainly on minesweepers, and as an engine room Petty Officer during that time.

Legal Issues

49.     

The claim brought by the estate of the late Mr Duncan and the claim brought by Mrs Duncan, as the widow of Mr Duncan, are to be determined pursuant to s120 and s120A of the Veterans’ Entitlements Act..  By reason of the claims being made upon the respondent after June 1994, Statements of Principles are to be considered.  The diagnosis of the injuries suffered by the deceased are not to be determined by reference to Statements of Principles (refer Benjamin v Repatriation Commission (2001) FCA 1879). Diagnosis is of course critical because it will permit identification of whether a Statement of Principle applies. With respect to claims made after June 1994 the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 recorded four 4 stages of analysis which required satisfaction before it could be found that a hypothesis was “reasonable” and then whether the Tribunal could be satisfied beyond reasonable doubt that death was, or was not,

war-caused.  Recently Selway J in Repatriation Commission v Hancock (2003) FCA 711 decided that there were some stages preliminary to Deledio that required satisfaction namely, whether the appellant was a veteran, whether his wife was his widow, and whether the appellant had died.  Additionally it was necessary to ascertain whether a Statement of Principle applies by identifying the “kind of injury” or the “kind of death” suffered by the veteran (refer s120A of the Veterans’ Entitlements Act).

50.     In the present case I confess to some difficulty in making a finding of diagnosis with respect to the claimed condition of “breathing problems”.  Diagnosis is of course critical in order to determine whether, and if so, which Statement of Principle applies.  No assistance has been offered by the applicant’s representative other than to point to the Statement of Principle with respect to the Statement of Principle for chronic bronchitis and emphysema.  Both conditions, if they existed, might clearly cause “breathing problems” but equally a number of other illnesses or injuries or diseases might contribute to or be responsible for “breathing problems”..  Indeed making a finding as to diagnosis is secondary only to a finding that a condition exists as the Full Court found in Fogarty v Repatriation Commission (2003) FCAFC 136 at paragraph 34:

Where there is an issue as to whether or not a veteran is suffering from a claimed injury or disease then the Commission (and on review the Board or the Tribunal) must decide the issue to its reasonable satisfaction as required by s120(4) of the Act.

51.     The Court relied on a passage within the decision of Benjamin at page 634 where it was recorded:

Section 120 (1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120 (4) of the Act.

52.     The above passages from Fogarty and from Benjamin are consistent also with the conclusions reached by Selway J in Hancock where at paragraph 9 he concluded that in the context of the “preconditions” for a claim prior to consideration of the four 4 stages in Deledio, “the identification of the “kind of death” (and therefore the “kind of injury”) is the critical step in the analysis.

53.     Clearly making a finding must be made, on the balance of probabilities, of the injury or disease suffered by the deceased in his lifetime before a Statement of Principle can be identified.  Only at that stage will the process commence of determining whether a hypothesis exists and whether that hypothesis is reasonable.  If the claimed illness or disease does not as a fact exist, that is, if it cannot be found on the balance of probabilities, consideration of whether a Statement of Principle is satisfied is an irrelevance.  That is to say, if the claimed condition did not exist, it would therefore be irrelevant to determine whether any hypothesis connecting that condition with service exists and or whether that hypothesis is reasonable.  If the condition does not exist the enquiry into entitlement from the respondent ends.  Put alternatively there is no condition over which a hypothesis can be found.

54.     I am not satisfied that the deceased did suffer from the conditions of either chronic bronchitis or emphysema.  These conditions were said to constitute the injury “breathing problems” as claimed by Mr Duncan in his lifetime.  The conditions of chronic bronchitis and emphysema were the conditions assumed to constitute the condition of “breathing problems” by the respondent and by the Veterans’ Review Board in its previous decisions.  Irrespective of the label given to the condition “breathing problems” I am not satisfied that Mr Duncan in fact did suffer chronic bronchitis and or emphysema.

55.     Mrs Duncan said that her husband suffered shortness of breath after the family moved farms in 1956.  She said that “towards the end” he found it difficult to breathe.  Mr Duncan said that his father “ran out of breath” in the last few years of his life.

56.     I can find nothing from the extensive medical records which point to the deceased having any chronic bronchitis or emphysema other than the reference to suffering from a cold or bronchitis during service.

57.     The hospital files from the Mildura Base Hospital, the Mildura Private Hospital and the Austin & Repatriation Medical Centre contained many notes taken by doctors, nurses and other health care professionals over many years.  There are frequent histories taken on each of the deceased’s admissions.  The deceased did not ever disclose any bronchitis or emphysema or like condition nor is there any reference anywhere in the material to the deceased being breathless or having breathing difficulties other than the two 2 references in the last week of his life to the administration of oxygen.  Those occasions were clearly not the “breathing problems” that the deceased recorded in his lifetime being a point in time well prior to him being admitted to hospital and being in a terminal state.

58.     It was said by Mrs Duncan that the presence by her husband over the years of “heavy colds” were indicative of “breathing problems”..  Yet the deceased did not ever attend doctors for treatment of “heavy colds” or any other condition which would suggest breathing or airway difficulty.  I would have thought that having regard to the admissions by the deceased during service for treatment of those conditions and then being certified as incapacitated would be inconsistent with the deceased failing to attend doctors for treatment of that condition if it existed.  Particularly if on the evidence of Mrs Duncan that her husband was breathless after 1956 it is inconceivable that in the next 45 years of his life he would not have attended doctors or undertaken treatment if he had suffered from “breathing problems”.

59.     I am more inclined to the belief and find as a fact that the “breathing problems” recorded by Mr Duncan in his claim for disability pension made on 9 March 2001 (3 weeks prior to his death) were associated with the terminal cancer that he then endured.  Mr Duncan claimed that his “breathing problems” were associated with his prior cigarette habit and either by these proceedings or by assumption earlier it was said that the “breathing problems” gave rise to the diagnosis of chronic bronchitis and emphysema.  I am not prepared to find as a fact that the deceased did suffer from either chronic bronchitis or emphysema.  Additionally I am not prepared to find as a fact that the deceased having suffered from “heavy colds” points to the presence of the condition of chronic bronchitis or emphysema.  A “heavy cold” is something which is suffered by a considerable proportion of the population each winter.  It is usually temporary in nature and does not cause persisting breathing difficulty.  The conditions of “chronic bronchitis and emphysema” are much more severe and savage in nature causing persisting breathing difficulty.  For reasons given above I am not satisfied that those conditions were suffered by the deceased.

60.     Accordingly I am satisfied that the four 4 stages of analysis as found in Repatriation Commission v Deledio (1998) 83 FCR 82 need to be considered only with respect to the claimed conditions of bilateral sensorineural hearing loss and bilateral tinnitus.

61.     The four 4 stages of analysis in Deledio are recorded 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an 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 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 a 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.

62.     Mr Duncan said that his father suffered from loss of hearing and he had served on Corvette motor vessels which he understood to be noisy.  That would suggest material pointing to a hearing loss connected with service.  Mrs Duncan said that her husband suffered from ringing in his ears.  I understand that to be a reference to tinnitus.  I understand that tinnitus is a consequence of hearing loss.  I am therefore satisfied stage one 1 of the Deledio analysis is satisfied.

63.     Stage two 2 is satisfied to the extent that sensorineural hearing loss is a condition recognised by Statement of Principles No.29 of 2001 and tinnitus is recognised by Statement of Principles No.25 of 2001.  Accordingly stage two 2 of Deledio is satisfied.

64.     In my view however the application fails at stage three3..  At this stage a finding of the hypothesis being reasonable can only occur if the hypothesis is consistent with the “template” of the Statement of Principle.  That is, the hypothesis that has been raised must contain one or more of the factors which the Repatriation Medical Authority has decided must exist as a minimum and which must be related to service.

65.     In the deceased’s lifetime he did not ever undertake an audiogram.  There is no reference throughout any of the medical or clinical records lodged in these proceedings pointing to the deceased in fact suffering from bilateral sensorineural hearing loss or tinnitus by reason of any of the factors found in either of the above Statements of Principles.  To the extent that sensorineural hearing loss and tinnitus is a consequence of acoustic trauma, the factors within each of the above Instruments provide a minimum decibel threshold to which there must have been exposure before it can be said as a minimum that a reasonable hypothesis has been raised connecting sensorineural hearing loss with service.  In the absence of material pointing to decibel threshold levels, it cannot be found that the template of either Statements of Principles has been satisfied.  The Statement of Principle with respect to sensorineural hearing loss contains 47 different factors giving rise to a finding that sensorineural hearing loss exists as a reasonable hypothesis.  There is no material that I can locate in any of the medical and clinical data lodged in these proceedings pointing to any of those factors being satisfied.  I reached the same conclusions with respect to the Statement of Principle concerning tinnitus which contains 25 factors.

66.     Accordingly I cannot be satisfied that the hypothesis raised with respect to sensorineural hearing loss and tinnitus are reasonable hypotheses because the hypothesis raised does not contain one of the factors found within the Statement of Principles.  Because the hypotheses failed to fit within the Statements of Principles they are deemed not to be reasonable and the claim will fail.

67.     Accordingly the decision under review made by the Veteran’s Review Board on 23 September 2002 - although for different reasons - will be affirmed.

68.     The claim brought by Mrs Duncan as the widow of the late Mr Duncan was put on the basis of an association between service and prostate cancer.

69.     I am satisfied and find as a fact that the deceased did suffer from carcinoma of the prostate.  I am satisfied that that condition and other multiple bony metastases contributed to this death.  I am satisfied that the prostate carcinoma was primary in origin, that a hypothesis has been raised connecting it with service and that a Statement of Principle namely No.84 of 1999 and No.69 of 2002 exist within the assessment period.

70.     Applying therefore the Deledio principles at stage three3, an opinion must be formed whether the hypothesis raised is reasonable.  It will only be reasonable if the hypothesis fits within, or is consistent with, the template found in the Statement of Principle.

71.     Mr De Marchi submitted that the only applicable factor (with which I agree) was factor 5(c) namely increasing animal fat consumption by at least 40% to at least 70 grams per day for at least 20 years before the clinical onset of the malignant neoplasm of the prostate.

72.     The definition of “animal fat” was altered by Instrument No.69 of 2002 but that is of no consequence in my view in these proceedings.

73.     There is no material which points to an increase in animal fat consumption by at least 40% and then to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.  Mrs Duncan said that she married her husband in 1952 and did not know of his diet prior to service other than an enquiry made of her husband’s sister revealed that he “ate ordinary meals”.  She said that her husband ate roast meals after marriage but had no particular liking for fatty foods including ice-cream or cheese.

74.     I cannot therefore conclude that there is material which points to the deceased increasing his consumption of animal fat by at least 40% subsequent to service and then to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.

75.     I therefore am unable to find that there is material raised pointing to or consistent with the template found in the Statement of Principle.  Because the hypothesis fails to fit the template it is deemed not to be reasonable and the claim will fail.

76.     In Hancock, Selway J (paragraph 8) alluded to the possibility of other medical conditions causing a death.  His Honour discussed the possibility that where multiple conditions are recorded on the death certificate the most predominant condition may not necessarily have been the cause of death.  He discussed the possibility of one or more than one of the other conditions being found to be the cause of death.  He concluded that if one of those other causes of death was itself war-caused it may be sufficient to establish an entitlement to pension.

77.     I am unable to find from any of the medical or clinical data lodged that the deceased suffered from any other medical condition which could be found to be a cause of death.  The respiratory arrest, the acute blood loss and the retroperitoneal haemorrhage recorded on the death certificate (in addition to carcinoma of prostate) are all conditions which were associated with the terminal prostate cancer.  By reason of those conditions being a consequence of the prostate cancer - and apparently according to the clinical data - features commonly associated with terminal prostate cancer - they could not be said of themselves to be the cause of death.  Particularly there could be no finding that any of those conditions had any association or were caused by war service.

78.     There is no indication from the medical files or from the death certificate of an autopsy being performed.  I cannot find the presence of any disease associated with exposure to asbestos or any airborne irritants, as a stoker, as alleged.  Additionally, the references to the deceased being breathless in the last years of his life appear to be related to his prostate cancer or lethargy associated with it.  On this issue, despite what is recorded on the death certificate, it is clear the deceased suffered prostate cancer for a greater period then six 6 months, as was certified.

79.     Dr Byron Collins concluded that the deceased was “markedly debilitated from extensive prostatic bony metastases” at admission on 22 March 2001 and he could find nothing from the hospital notes indicating the presence of “breathing difficulties” or an acute chest infection.  Both Dr Byron Collins and Dr Cade referred to the entry on 8 February 2001 by the palliative care registrar at the Austin Hospital of “COPD”.  Both were unsure whether that condition - in the manner in which it was recorded - indicated the presence or the absence of “chronic obstructive pulmonary disease”..  Dr Cade noted that he could make no finding in the clinical notes of the deceased having any respiratory symptoms or being administered any respiratory therapy.  He concluded that the “only condition causing and contributing to death was carcinoma of the prostate”.

80.     In the circumstances I am unable to find any reasonable hypothesis connecting the circumstances of the service of the late Mr Duncan with his death.

81.     The decisions therefore made by the Veterans’ Review Board on 23 September 2002 are affirmed.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.

Signed:         Elsa Genovese
  Personal Assistant

Date of Hearing  21 May 2003 (Mildura)
Date of Decision  8 October 2003
Solicitor for the Applicant          Mr D De Marchi
Counsel for the Respondent     Mr R Douglass