Howes and Repatriation Commission

[2001] AATA 450

DECISION AND REASONS FOR DECISION [2001] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No V00/865

VETERANS' APPEALS  DIVISION       )         V00/866        
          Re      ALAN RICHARD HOWES          
  Applicant
          And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member Mr A Argent, Member Assoc. Professor Maynard, Member        

Date25 May 2001

PlaceMelbourne

Decision      1.      The Tribunal varies the decision of the Repatriation Commission to provide that malignant neoplasm of the prostate is a war-caused disease with effect from 4 January 1997 and inguinal hernia is a war-caused disease with effect from 22 February 1997.  2.    The matter is remitted to the Repatriation Commission for       assessment of the rate of pension.           
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – disability pension – whether malignant neoplasm of prostate and inguinal hernia are war-caused diseases – application of Statement of Principles for malignant neoplasm of prostate – factor (a) exposure to herbicides in Vietnam – applicant in Vietnam for 10 days on a logistic visit prior to deployment of Australian task force to Vietnam – definition of "exposure to herbicides in Vietnam" in SoP – paragraph (a) of definition refers to 30 days service on land in Vietnam – paragraphs (b) (c) alternatives to (a) – refer to "regularly" eating food or drinking water from Vietnam – whether 10 days regular eating and drinking as specified can satisfy the definition – malignant neoplasm of prostrate war-caused – concession that inguinal hernia also war-caused
Statements of Principles Instrument No. 29 of 1994, 227 of 1995, 95 of 1995, 191 of 1996

REASONS FOR DECISION

25 May 2001 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Assoc. Professor Maynard, Member                   

1. This is an application for review of a decision of the Repatriation Commission made on 7 November 1997 and affirmed by the Veterans Review Board on 19 April 2000.

2. The sole issue for determination at this stage is whether Mr Howes' malignant neoplasm of the prostate is a war caused disease within the meaning given that term in the Veterans Entitlements Act 1986 ("the Act").  The respondent in paragraph 5.6 of its Statement of Facts And Contentions conceded that the inguinal hernia was connected with the surgery for malignant neoplasm of the prostate, as was written by Dr Yeaman in a letter of 19 April 1999 (T2 pxxxi), and that it satisfies the relevant Statement of Principles ("SoP") for inguinal hernia Instrument No. 29 of 1994, as amended by Instrument No. 227 of 1995.  

3. Mr Chancellor of Counsel, appeared for the applicant. Mr Douglass, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents, ("the T documents"), lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.  Evidence was given by Mr Howes and by Mr Ducker for the Repatriation Commission. 

4. Mr Howes had a number of periods of operational service.  The only one which is relevant to this application is service in Vietnam from 19 to 28 January 1965, when he visited Vietnam prior to the deployment of an Australian task force to Vietnam, on a logistic orientation and observer visit and wrote a report, exhibit A3.

5. Because of the date when the claim was lodged, a hypothesis connecting malignant neoplasm of the prostate will only be reasonable if it is upheld by the relevant SoP for that condition, that is Instrument No. 95 of 1995, as amended by Instrument No. 191 of 1996.  That provides two factors either of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate with the circumstances of service.  The relevant factor is factor (a) "being exposed to herbicides in Vietnam".  The SoP, in paragraph 4 explains what is meant by the concept of "being exposed to herbicides in Vietnam".  It provides:

   Being exposed to herbicides in Vietnam may be said to have occurred only if the person had, before the clinical onset of malignant neoplasm of the prostate:

   (a) rendered more than 30 days' service on land in Vietnam or;

   (b)regularly eaten fish, fish products, crustaceans, shell fish or meat from Vietnam, or;

   (c)regularly eaten food cooked with water from Vietnam, discoloured by sediment, or regularly drunk water from Vietnam, discoloured by sediment, or;

   (d)regularly inhaled dust in a defoliated area in Vietnam, or regularly inhaled herbicide fog in Vietnam.

Paragraph (e) is not relevant. 

1. Thus, the SoP sets out in paragraphs 4 (a) to (e), a number of alternative ways of satisfying factor (a), "being exposed to herbicides in Vietnam".  Mr Howes cannot satisfy paragraph (a) of the definition of "being exposed to herbicides in Vietnam".  It only applies where the veteran rendered more than 30 days' service on land in Vietnam.  Mr Howes was there for 10 days.  However, the word "or" at the end of paragraph (a) indicates that paragraphs (b), (c), (d) and (e) are alternative ways of satisfying the exposure requirement.  They have no time limit, but paragraphs (b), (c) and (d), which are the ones relevant to this application, commence with the word "regularly". 

2. Mr Douglass tendered copies of dictionary definitions of the words "regular" and "regularly" which, so far as relevant, read as follows:

   Macquarie Dictionary 1982 (R7)
   regular. . . adj. 1. usual; normal; customary; to put something in its regular place. . . . 4. recurring at fixed times; periodic; regular meals.
   regularly, adv. 1. at regular times or intervals.  2. according to plan, custom, etc.
   Shorter Oxford English Dictionary (R8)
   Regular . . .

   3. . . . b. Recurring or repeated at fixed times or uniform intervals 1756. c. Habitually or customarily used, received, observed, etc.; habitual, constant 1797.

3. The respondent submitted that the Tribunal should read into paragraphs (b), (c) and (d) a requirement of 30 days' exposure, as in paragraph (a), or something similar.  We reject that submission.  Our task is to apply the words of the SoP rather than to read into it words that are not there.  Mr Douglass submitted that paragraph (a) showed an intention that exposure should be equivalent or similar to 30 days service on land in Vietnam, and that the reason why paragraphs (b), (c) and (d) did not repeat the requirement of 30 days exposure on land, was that they were intended to apply to veterans serving at sea off Vietnam, but eating and drinking food and water sourced from Vietnam.  As Mr Chancellor pointed out that explanation could have no relevance to paragraph (d) as in order to have "regularly inhaled dust in a defoliated area in Vietnam, or regularly inhaled herbicide fog in Vietnam", a veteran would need to have been in Vietnam.  Further, if paragraphs (b) and (c) were intended to require 30 days or any prescribed time of eating or drinking the specified food or water, there is no reason why that time limit should not have been stated in the paragraphs.

4. Mr Howes, with the help of a report he wrote in February 1965, and the seven letters he wrote to his wife while he was in Vietnam, was able to reconstruct his time in Vietnam with considerable detail.  He gave evidence as to the places where he spent each night and the nature of the meals he ate each day.  He slept and ate breakfast in either the Majestic or the Victoria hotel in Saigon on six nights and slept one night at Vung Tao RAAF base and two nights at Nha Trang US Army Special Forces Base. 

5. The breakfast served at the Saigon hotels was a Vietnamese style breakfast with meat based soup, rice, and meat or fish, as well as French style bread.  At the Army bases, the breakfasts were typical Australian and American.  Mr Howes said that he took some bread and cold meat, or other food from breakfast, to have a snack lunch wherever he would find himself, except on his second day when he had lunch in a civilian restaurant with US officers.   He ate all his evening meals in Vietnamese restaurants, or the hotel restaurants where the meals were Vietnamese style and similar to the breakfast described.  He had two suppers at Vietnamese homes after eating his dinner and on the Sunday night, when he returned to the US base after dinner at a civilian Vietnamese restaurant, he joined US officers eating steak at the base.  He said in the hotels and restaurants he always ate either fish or meat, such as pork or chicken, and soup and rice.  

6. On that evidence we find that during his 10 days in Vietnam, Mr Howes regularly ate fish or meat from Vietnam.  Mr Douglass submitted that 10 days was not sufficient for us to find that Mr Howes regularly ate fish or meat from Vietnam.  We consider that the regular eating of meals for a period of 10 days, when most of those meals contained fish or meat from Vietnam, does satisfy the requirement of paragraph 4(b) of the definition. 

7. We also find, on the evidence, that paragraph 4(c) is satisfied.  Mr Howes said he ate rice usually twice a day, once three times a day when he had it at lunch as well as breakfast and dinner, and he said the fish and meat was often stewed rather than fried.  That rice and fish and meat would have been cooked in water.  Mr Howes said the water in his Saigon hotels had a smell and was brown and discoloured by sediment.  The food he ate in the hotels and restaurants we find was cooked in that sort of water.  

8. Paragraph 4(c) also looks at the drinking of water, discoloured by sediment.  Mr Howes said he always had a water bottle with him.  He filled it from the jug at the restaurant in the hotel in the morning.  Those jugs were not made of glass and so the sediment was not very obvious, but he said it was there.  He refilled the bottles once or twice during the day using whatever water was available.  He said others told him that was the water they drank, so he sterilised it with tablets and drank it.  He said he does not drink alcohol so he drank a considerable amount of water each day.  He was there in the dry season and required water to maintain his hydration.  He also drank Chinese tea, made with the local water, when visiting Vietnamese homes on two evenings.  In letter 118 to Mrs Howes, Mr Howes referred to the fact that the water supply was polluted, writing:

   I have luckily managed to avoid any tummy upset despite the polluted water supply.

We find that pattern of drinking two or three bottles of water from Vietnam, discoloured by sediment, each day constitutes regularly drinking that water. 

1. Paragraph 4(d) requires that a veteran regularly inhaled dust in a defoliated area in Vietnam.  Mr Howes was there in the dry season.  He travelled by jeep on dusty roads.  (See letter 115, page 3.)  He said the sides of the roads had been cleared for security reasons.  He did not know whether that clearing was mechanical or by burning or by use of chemicals.  We find he travelled in cleared areas, but he did not described defoliated areas.  Defoliated means "loss or shedding of leaves".  There was no evidence of that. 

2. We find that paragraphs (b) and (c) of the definition of "being exposed to herbicides in Vietnam" are satisfied. 

3. Thus, we find that Mr Howes' malignant neoplasm of the prostate is a war caused disease.  Similarly, the inguinal hernia is a war-caused disease, because of the concession of the respondent in its statement of facts and contentions, paragraph 5.6, accepting the opinion of Dr Yeaman at T2 pxxxi in the T documents.  At the request of the parties, we will remit the matter to the Repatriation Commission for assessment of the rate of pension. 

4. The decision of the Repatriation Commission will be varied to provide that malignant neoplasm of the prostate and inguinal hernia are war-caused diseases. The matter will be remitted to the Repatriation Commission for assessment of the rate of pension.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr A Argent, Member and Assoc. Professor Maynard, Member

   Signed:         Grace Carney
     Associate

   Date/s of Hearing  15 May 2001
   Date of Decision  25 May 2001
   Counsel for the Applicant        Mr G Chancellor
   Solicitor for the Applicant        Williams Winter Higgs
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Nil
   Departmental Advocate          Mr R Douglass