Flux and Repatriation Commission
[2004] AATA 834
•10 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 834
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/16, 22
VETERANS' APPEALS DIVISION ) Re CECIL BRUCE FLUX Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date10 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decisions to reject claims for disability pension for:
1. Non melanotic malignant neoplasm of the skin of various sites;
2. Pterygium in the right eye; and
3. Hypermetropia right eye.
................SIGNED........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS AFFAIRS – solar skin damage – eye damage – solar exposure during eligible service – Statement of Principles not satisfied – decisions affirmed
Veterans’ Entitlements Act 1986 : s 9
REASONS FOR DECISION
Deputy President Don Muller 1. Cecil Bruce Flux, the Applicant, claims that his squamous, or basal cell carcinomas at various body sites are war-caused because of his exposure to sunlight during his operational service in Malaysia and South Vietnam between 29 September 1961 and 9 June 1966.
2. Mr. Flux also claims that he acquired a war-caused pterygium in his right eye, which led to hypermetropia or astigmatism in that eye, due to the exposure of his face to sunlight during the same period of operational service.
3. Both claims were made pursuant to the provisions of the Veterans’ Entitlements Act 1986.
4. The Repatriation Commission rejected both claims and those decisions were subsequently affirmed by the Veterans’ Review Board.
5. Mr. Flux seeks review of the two decisions.
(a)Application D2003/16 relates to the claim involving squamous cell carcinomas.
(b)Application D2003/22 relates to the claim involving the pterygium and astigmatism of the right eye.
6. Section 9 of the Veterans’ Entitlements Act 1986 provided:
9. War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
7. The following matters are not in dispute and the Tribunal finds as follows:
(a)Mr. Flux was born in Queensland on 25 October 1940.
(b)He lived in Queensland until he joined the Royal Australian Navy as a nineteen year old on 3 June 1960.
(c)He was discharged from the Navy on 2 June 1969.
(d)During his nine years in the Navy, Mr. Flux had a total of 314 days of eligible operational service, all of which were in either Malaysia or South Vietnam.
(e)After discharge from the Navy, Mr. Flux lived in Queensland for two years.
(f)In 1971 he moved to Darwin where he has lived ever since.
(g)Mr. Flux has had the following occupations since leaving the Navy; shop assistant, railway engine cleaner, power station plant operator, service station console operator and fishing guide.
8. Mr. Flux first became aware that he had skin damage with recurring lesions in about 1970. He did not seek medical treatment for the condition until about 1986.
9. The material placed before the Tribunal indicates that Mr. Flux believes that the condition of pterygium in his right eye was visible in about 1971. It was excised in 1993.
10. Mr. Flux claims that his astigmatism in the right eye is due to the pterygium.
11. The material placed before the Tribunal raises the following three hypotheses:
(a)Mr. Flux was exposed to the sun during his operational service in the Navy. The sum emits ultra violet radiation which can cause skin cancer. Consequently, his squamous cell carcinomas are war-caused.
(b)Mr. Flux was exposed to the sun during his operational service in the Navy. The sun emits ultra violet radiation which can cause a pterygium to form in the eye. Consequently, the pterygium in his right eye was war-caused.
(c)Astigmatism can be caused by a pterygium. Consequently, the astigmatism in Mr. Flux’s right eye is war-caused.
12. The Repatriation Medical Authority (RMA) has recognised that exposure to ultra violet (UV) rays from the sun is a factor in the causation of non-melanotic malignant neoplasm of the skin (basal or squamous cell carcinoma). Exposure to sunlight is also a factor in the development of a pterygium. The RMA has also recognised that having a pterygium can be a cause of astigmatism. The relevant Statement of Principles (SoP) for each of basal cell carcinoma, pterygium and astigmatism and the relevant parts thereof are:
“Non Melanotic Malignant Neoplasm of the Skin
No. 43 of 2001 as amended by No. 51 of 2001
Factors
5(b) having a solar UV damage factor ratio of at least 1.1 for the affected area at the time of the clinical onset of non melanotic malignant neoplasm of the skin.
Pterygium
No. 45 of 2001 as amended by No. 53 of 2001
Factors
5(a) having a solar UV damage factor ratio of at least 1.1 for the face at the time of the clinical onset of pterygium
Hypermetropia and Astigmatism
No. 23 of 1999
Factors for astigmatism only
5(c)(iii) suffering from a pterygium of the affected eye at the time of the clinical onset of astigmatism.”
(The claim for astigmatism relies on the success or otherwise of the claim for pterygium.)
13. The definition of “solar UV damage factor ratio formula” is the same for both non melanotic skin cancer and pterygium. It is:
Total lifetime UV damage factor
Non-service UV damage factor
This is the ratio which must be at least 1.1 to satisfy the relevant SoP.
14. The lifetime and non-service UV damage factor is calculated according to a complicated formula which takes account of various factors which all relate to UV exposure, such as, hours spent in the sun, hours spent in shade, hours spent indoors, geographical latitude, seasonal variations and anatomical body site (among others).
15. It could probably be argued that any length of exposure to the sun, no matter how small, could make a contribution to the formation of skin cancer and/or pterygium and thus lead to an hypothesis linking operational service, no matter how short, to the skin cancer or pterygium. However, the requirement that the ratio contained in the SoP has to be at least 1.1 seems to reflect an attempt by the RMA to remove the “de minimus” factor. It requires that a certain minimum total UV damage during operational service should exist before it could be said that a reasonable hypothesis has been raised connecting the skin cancer or pterygium with the operational service. A few hypothetical examples will explain the concept.
(a)If a person had a total lifetime UV damage factor of say 133 units at the time of the clinical onset of the carcinoma or pterygium and that person had no eligible service, the ratio would be :
133 = 1.00
133
This is less than 1.1 and the person would not satisfy the SoP and hence not succeed in a claim such as this.
(b)If a person with a lifetime UV damage factor of 133 units at the time of clinical onset had acquired a total UV damage factor of 10 units whilst on operational service, the ratio would be:
133 = 1.08
123
This is less than 1.1 and the person would not satisfy the SoP.
(c)If a person with a lifetime UV damage factor of 133 units at the time of clinical onset had acquired a total UV damage factor of 23 units whilst on operational service, the ratio would be:
133= 1.21
110
This is at least 1.1 and the person would satisfy the SoP.
16. Mr. Flux answered a lengthy questionnaire about his exposure to the sun, year by year, season by season, over his life-time.
17. There have been a number of calculations done in the case of Mr. Flux to determine the UV damage factor ratio. There have been disputes about:
(a)The amount of UV exposure in early childhood;
(b)The percentage of time during operational service that he was exposed;
(c)The amount of UV exposure in civilian life after service;
(d)The date of clinical onset of the disabilities.
(e)What the final figures mean in terms of the SoP and the VEA Act.
18. It was not until September 2003 that a final calculation was done in which the following parameters were satisfactory to both parties:
(a)The first five years of Mr. Flux’s childhood should not be counted. It was assumed for the purpose of this exercise that those years were spent indoors.
(b)The date of clinical onset of the disabilities was 1 January 1971.
(c)He was exposed to UV radiation for 50% of the time he was on operational service.
(d)Any exposure to UV radiation after 1 January 1971 did not count.
19. The final calculation was produced to Mr. Flux in the following form:
Percentage Increase in Risk due to Service Activity at Age 30.188
Face Hand Back Arm Leg
4.48 4.48 4.48 4.48 4.48
20. Mr. Flux has sought clarification from the RMA about what is meant by “increased risk” and how the figures (4.48 for example) relate to the UV damage factor ratio which has to be at least 1.1 to satisfy the SoP. He received the following reply:
“…, I do not see an ambiguity in the SoP. The value obtained from the formula is a ratio. The pterygium SoP refers to a ratio of 1.1 as being the minimum required for the UV factor to hold. This is equivalent to a percentage increase in the index of 10%. Thus, if the ratio of total to non-service UV damage exceeds 1.1, or a 10% increase due to service, the UV factor would apply.”
21. It seems clear that the RMA regard the above figure of 4.48 as representing a UV damage factor ratio of 1.0448. Since this figure is less than 1.1, the claims by Mr. Flux have been rejected.
22. The reply by the RMA to Mr. Flux raised three concerns for him:
(a)There is no concept of “increased risk due to service” in s.9 of the Act. If the disease contracted by the veteran resulted from an occurrence that happened while he was rendering operational service, or arose out of, or was attributable to his operational service, the disease is war-caused.
(b)In the case of Mr. Flux, who spent his first 19 years in the tropics, the “increase in risk due to service” may be very close to zero. However, notwithstanding his exposure to solar UV during non-operational periods, if he was sufficiently exposed to solar UV during his operational service to satisfy the SoP he is entitled to succeed on his claim. If, for example, he had acquired half of his total lifetime UV damage factor whilst on operational service his ratio should be 2.00 and he would satisfy the SoP, irrespective of increased risk due to service.
(c)The term “increase in risk due to service” seems to be meaningless when applied to the ratio. The top line of the ratio will remain constant for any given person irrespective of whether they had operational service or not. It is the bottom line which may change. The greater the solar exposure due to operational service the lower the figure on the bottom line. A reduction in the bottom line of 9.5% gives a ratio of 1.105. So that if a veteran acquired 9.5% of their total lifetime UV damage factor whilst on operational service they would succeed.
23. Mr. Flux has made three perfectly valid points. He is entitled to have his case determined according to the Act and according to the relevant Statement of Principles. At the very least he is entitled to an explanation which is meaningful in terms of the Act and Statements of Principles. That is, he is entitled to know what are the figures for the top and bottom lines of the ratio and what is the ratio in his case.
24. However, the Tribunal is aware that although the computer program which produces the figures has been the subject of a great deal of criticism in the veterans’ affairs arena, it has been generally accepted that we are stuck with it. Mr. Flux does not satisfy the SoP for each of his claimed disabilities.
25. The Tribunal is satisfied that although the points raised by Mr. Flux are valid, they will only make a difference in a borderline case. Mr. Flux spent less than 1/30 of his first 30 years on operational service. He spent most of the rest of his life in the tropics. His case seems to be way below borderline. The decisions under review relate to a period of approximately 25 years, from age 5 to age 30. During that 25 year period, Mr. Flux spent 314 days in the tropics on operational service and most of the rest in the tropics. If it is assumed that his exposure per day during operational service was about the same as it was for his non-operational service, the ratio would be close to:
25 x 365 _____ = 9125 = 1.036
(25 x 365) - 314 8811
Even if his exposure during the 314 days was on average twice his non-operational daily exposure the ratio would be close to:
25 x 365________ = 9125 = 1.074
(25 x 365) – 628 8497
Neither of these ratios are more than 1.1
26. I am satisfied that the UV exposure of Mr. Flux during his operational service was not sufficient to satisfy the SoP.
27. There is no reasonable hypothesis linking the claimed disabilities with the Naval service of Mr. Flux.
28. The Tribunal affirms the decisions to reject the claims.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 3.12.03, 22.4.04, 17.6.04
Date of Decision 10 August 2004
Solicitor for the Applicant Mr. B. Piper
Respondent Mr. G. Doube, departmental advocate
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