Hunt and Repatriation Commission

[2007] AATA 1404

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1404

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2005/1025

VETERANS’ APPEALS  DIVISION		)
Re		VALMAE HUNT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Rear Admiral A R Horton AO, Member

Date 6 June 2007

Place SYDNEY

Decision  The decision under review is affirmed.

................[sgd]..............................

Dr J D Campbell

Member

CATCHWORDS

Veterans’ Entitlements – application for war widow’s pension – kind of death – veteran’s death from metastatic adenocarcinoma of the colon – relationship to service – chain of causation – trauma to neck – cervical spondylosis – inability to exercise – being obese

Veterans’ Entitlements Act 1986 – sections 8, 13, 120, 120A

Repatriation Commission v Hancock (2003) 37 AAR 383

Bull v Repatriation Commission (200) 66 ALD 271

Repatriation Commission v Hill (2002) 69 ALD 581

Repatriation Commission v Deledio (1998) 83FCR82

REASONS FOR DECISION

6 June 2007  Dr J D Campbell, Member
  Rear Admiral A R Horton AO, Member

1.      Mr Edward Hunt served with the Royal Australian Air Force during the period
30 January 1943 to 18 March 1948.    

2.      Mr Hunt married Mrs Hunt on 5 February 1949. 

3.      Mr Hunt died on 23 July 2004, the cause of death recorded on the death certificate being metastatic adenocarcinoma of the colon with terminal hypostatic pneumonia for two days.

4.      Mrs Hunt lodged a claim for a war widow’s pension on 27 September 2004.  This claim was denied by the Repatriation Commission on 29 September 2004, a decision that was affirmed by the Veterans’ Review Board on 29 July 2005. Both decisions concluded that Mr Hunt’s death was not related to his service.

5.      Mrs Hunt contends that Mr Hunt’s death from metastatic adenocarcinoma of the colon was causally related and/or contributed to by his service, in that because of trauma to his neck during service Mr Hunt developed cervical spondylosis which in turn prevented him from undertaking exercise, whereby he developed the condition of obesity which caused and/or contributed to his malignant condition. 

Issues

6.      The relevant issues in this matter are:

a)    What is the kind of death suffered by the late veteran?

b)    Is there material pointing to each element of a hypothesis linking the kind of death suffered by the veteran with his service?

c)    Are there Statements of Principles (“SoP”) applicable to the kind of death suffered and other conditions nominated in the chain of causation?

d)    Does a reasonable hypothesis exist?

e)    Does the claim succeed?

Decision

7.      For the reasons stated later in this decision we conclude that:

a)    The kind of death suffered by the late veteran was one of metastatic adenocarcinoma of the colon, which had been present for at least 18 months prior to his death.

b)    There is material pointing to each element of the hypothesis, namely, involvement in forced landings, cervical spondylosis, inability to exercise, obesity and the adenocarcinoma of the colon.

c)    The applicable SoPs are:

  i.    Instrument No 1 of 2004 concerning malignant neoplasm of the colorectum, with the relevant factors being 5(k) and 5(l) and the term ‘being obese’ defined in paragraph 8.

  ii.    Instrument No 33 of 2005, concerning cervical spondylosis, with the relevant factor being 6(g) and, its predecessor, Instrument No 50 of 2002 as amended by Instrument No 81 of 2002 with the relevant factor being 5(h).

d)    A reasonable hypothesis does not exist as there is no material pointing to
Mr Hunt having experienced trauma to his cervical spine during service as defined in paragraph 9 of Instrument No 33 of 2005, or in paragraph 8 of Instrument No 50 of 2002 as amended by Instrument No 81 of 2002.

e)    The claim does not succeed and the decision under review is affirmed.

Background

8.      Mr Hunt trained in Australia as a navigator and bomb aimer, and was mustered as Aircrew Navigator (B), the B meaning qualified bomb aimer.  He was attached to the Royal Air Force and served in Britain from June 1944 until January 1946.  There are no “operational missions” recorded in Mr Hunt’s flying log book (Exhibit A8).  This is attributed to the fact that by the time he completed his operational conversion, the European war was almost over (Mr R K Piper, Military Aviation Research Services Report of 6 October 2006 – Exhibit R6).

9.      Mr Hunt’s log book records 635 hours flying time including 125 hours at night.  It indicates that his conversion course in England was generally in Avro Anson aircraft, and subsequently he crewed Wellingtons and Lancasters.  On return to Australia, and until his discharge in 1948, he crewed in Avro Ansons and Douglas C-47 (Dakota) aircraft.

10.     In a claim for a disability pension for ischaemic heart disease and trauma to the cervical spine, lodged on 5 July 2004 (T6, p28), Mr Hunt stated in respect to the latter:

“result of an aircraft crash at Nhill – 27.11.43, and later at Cootamundra. 
To best of my knowledge I was checked out at hospital (details from log book)”

and that he first became aware of the signs and symptoms of the disability in 1943.

11.     The veteran’s log book records three forced landings, two on 27 November 1943 in an Avro Anson when flying from Nhill to Cootamundra, and the third on 23 April 1947 in a Douglas C-47 at Whyalla.

Mrs Hunt’s Evidence

12.     Mrs Hunt stated that she first met Mr Hunt in 1946, when she was 14 years of age, and that they married in 1949.  She stated that her husband had no neck symptoms until they were married, that around that time he saw several doctors and he had experienced neck symptoms pretty well since that time.

13.     Mrs Hunt stated that they moved to the Central Coast in 1971, with her husband working as a sales representative.  Mrs Hunt stated that her husband continued to see many doctors concerning his neck.  In 1983, the year in which Mr Hunt retired, his neck was very bad and he was suffering headaches, which had caused him episodically to take a few hours off work.  Mrs Hunt stated that Mr Hunt became progressively unable to do things around the house, was unable to mow lawns, and had to sleep sitting up, such reduction in activities being caused by neck pain which had been increasing prior to his retirement and thereafter.

14.     Mrs Hunt stated that Mr Hunt was a thin person when he left the Air Force, that he was an active man in the early years of their marriage, that his diet remained much the same over the years, but, with increasing immobility because of his neck pain, his weight increased.  Further, for the last eight years of his life, Mrs Hunt reported that Mr Hunt had difficulty with walking, because walking jarred his neck, with a resultant increase in pain.  Mrs Hunt also reported that her husband during his post-retirement years read a lot, tried to do jobs around the house and accompanied her shopping when able.

Legislative Content

15. Under section 13(1) of the Veterans’ Entitlements Act 1986 (“the Act”) the Commonwealth, subject to the Act, is liable to pay a pension to a dependent where the death of a veteran is war-caused.

16. Section 8(1) of the Act defines the circumstances in which a death is taken to be war-caused and includes:

“8  War‑caused death

(1)       Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:

(a)       the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)       the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)       the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d)       in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service;”

17.     As Mr Hunt served overseas during World War 2, all of his service is considered operational service.

18. As a consequence of Mr Hunt’s service being operational service the standard of proof to be applied in this matter is one of reasonable hypothesis involving consideration of sections 120(1), 120(3) and 120A of the Act.

Consideration and Findings

19.     Much material was placed before the Tribunal and evidence led concerning Mr Hunt’s service career, the activities undertaken, including forced landings, his increase in weight over time and his increasing impairment from his neck condition.  We have paid particular attention to all this material, with our considerations and conclusions being derived as a consequence of such a detailed study.

Kind of Death

20.     Both parties agreed that the kind of death suffered by Mr Hunt was metastatic adenocarcinoma of the colon.  We concur and make such a finding on the balance of probabilities (Repatriation Commission v Hancock [2003] 37 AAR 383 considered and applied).

The Hypothesis

21.     The hypothesis postulated was that the adenocarcinoma of the colon was caused and/or contributed to by the late veteran’s condition of obesity, which in turn had been caused and/or contributed to by an inability to exercise.  The inability to exercise was postulated to be a consequence of a cervical spine condition (cervical spondylosis) which in turn was a consequence of trauma suffered to his neck during service.

22.     In considering the hypothesis nominated we observe that there is material pointing to:

a)    metastatic adenocarcinoma of the colon.

b)    Mr Hunt suffering from obesity.  Specifically, there was material pointing to a record of Mr Hunt’s height on entry into service (67 inches), which may have decreased with age (Dr McCullagh’s oral evidence).  Further, there was material pointing to the clinical onset of obesity at sometime between 1986 (weight 81kg) and 1988 (weight 90kg in shoes – Dr Wild’s clinical notes).  The material points to the veteran’s weight varying, but always being above 87kg until March 1999, apart from a weight recorded on admission in January 1999 (Brisbane Waters Private Hospital records).  For six months following March 1999 the veteran’s weight was recorded as being below 85kg by the dietician at the Brisbane Waters Private Hospital (Exhibit R5).  Subsequently, Mr Hunt’s weight was recorded at 87kg, 86.6kg and 92kg on 20 March 2000, 3 April 2000 and 17 October 2000, respectively (Exhibit A7).

c)    Mr Hunt being unable to exercise and undertake activities that he was able to do in the past (oral evidence of Mrs Hunt, Report of Dr Harradine 7 October 1992 (Exhibit A7), oral evidence of son, Dr John Hunt).

d)    Mr Hunt suffering from a cervical spine condition (cervical spondylosis) causing pain and impairment (claim by Mr Hunt in 1996 (Exhibit R1); claim by Mrs Hunt on 6 August 2004 (T7); oral evidence of Mrs Hunt, Clinical Notes Dr Wild (Exhibit A7), Medical Report of Dr Wild dated 5 August 2004 (T8)).

e)    Mr Hunt suffered trauma to his neck during service as a consequence of three forced landings (Mr Hunt’s claim for disability pension (T6), claim by Mrs Hunt on 6 August 2004 (T7) and oral evidence).    (Military Aviation Research Services Reports were also examined in connection to the forced landings (Exhibits R7 and R8).)

23.     Having considered all the material in evidence, we conclude that the material does point to the hypothesis postulated, and that it is neither too remote, tenuous nor fanciful (Bull v Repatriation Commission (2001) 66 ALD 271 considered).

Statements of Principles

24.     The SoP applicable to the kind of death suffered by the late veteran is Instrument No 1 of 2004 concerning malignant neoplasm of the colorectum.  Ms Wood, counsel for the Applicant, initially pursued factors 5(k), (l) and (o) as creating a causal relationship between the kind of death suffered and Mr Hunt’s service.  However, on the second day of hearing (some months later) Ms Wood focussed her attention on factor 5(l), as both factors 5(l) and 5(k) involved consideration of somewhat similar antecedent material and issues, namely being obese, inability to exercise, cervical spondylosis and trauma to the cervical spine.  Factor 5(o) concerned dietary issues and was not pursued by Ms Woods, an outcome with which we concur in light of the absence of any material pointing to such an issue.

25.     As  there are a number of conditions in the causative chain hypothesised, namely being obese and cervical spondylosis causing the inability to exercise, it is also necessary to consider:

a)    The definition of “being obese”, contained within SoP Instrument No 1 of 2004 concerning malignant neoplasm of the colon.

b)    SoP Instrument No 33 of 2005 concerning cervical spondylosis and factor 6(g) upon which the Applicant relies to provide the causative link between service and the condition of cervical spondylosis.

c)    SoP Instrument No 50 of 2002 as amended by Instrument No 81 of 2002 concerning cervical spondylosis.  Factor 5(h) is relied upon to provide the causative link with service.

The Issue of Whether a Reasonable Hypothesis Exists

26.     In considering the chain of causation hypothesised, we note that the initial step in such a chain is the issue of whether there is material pointing to Mr Hunt suffering from cervical spondylosis.  We have already noted that there is material pointing to Mr Hunt suffering from such a condition – in particular the material nominated by his wife, the Clinical Notes (Exhibit A7) and Medical Report of Dr Wild dated 5 August 2004 (T8), which detailed a diagnosis of such in 1983 with a prior history of neck pain commencing in the 1950s and radiological confirmation of such a diagnosis in 1984.

27.     In observing that the postulated hypothesis nominates the causal connection to service being trauma to the cervical spine during service, we note that the Applicant relies on factor 6(g) within Instrument No 33 of 2005, which states:

“having a trauma to the cervical spine before the clinical onset of cervical spondylosis".

28.     We note that paragraph 9 of Instrument No 33 of 2005 defines trauma to the cervical spine in the following manner:

“trauma to the cervical spine” means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine.  These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:

(a)       immobilisation of the cervical spine by splinting, or similar eternal agent; or

(b)       injection of corticosteroids or local anaesthetics into the cervical spine; or

(c)       surgery to the cervical spine.”

29.     We also observe that SoP Instrument No 50 of 2002 concerning cervical spondylosis, being the applicable Instrument at the time of the primary decision contained a similar linking factor, namely factor 5(h) with the word ‘suffering’ replacing the word ‘having’ in the factor 6(g) enumerated in paragraph 27 of this decision.  We also note that the definition of trauma to the cervical spine in the earlier Instrument (No 50 of 2002) at paragraph 8 did not include the phrase “including G force-induced injury”, with the remainder of the definition being essentially similar to the later definition detailed earlier.  The amendments in Instrument No 81 of 2002 have no bearing on the matters canvassed.

30.     For the postulated hypothesis to be considered reasonable there must be material pointing to each element of the factor nominated within the SoP, upon which reliance is placed (Repatriation Commission v Hill (2002) 69 ALD 581 considered). In the matter before us, we note that the essential elements of the factor under consideration are “trauma to the cervical spine” and the “clinical onset of cervical spondylosis”.

31.     We are reminded that at this stage of our deliberations our task is not one of finding and/or weighing facts (Repatriation Commission v Deledio (1998) 83 FCR 82 considered). Our task is to consider all the material and assess whether there is any material pointing to and consistent with each element of the nominated factor.

32.     In so doing we have undertaken a careful examination of Mr Hunt’s service documents, including his flying log book, statements made by him and by his wife, oral evidence by his wife, clinical records of his general practitioner and the Brisbane Waters Private Hospital, the evidence of Dr McCullagh, the Military Aviation Research Services Reports and material included in the section 37 documents and other material adduced to the Tribunal.

33.     In considering the element, “clinical onset of cervical spondylosis”, of the factor our examination revealed that there is material pointing to the condition being present with a diagnosis of cervical spondylosis being made in 1983, with further material pointing to a clinical onset of symptoms during service, shortly after service (evidence of Mrs Hunt) and in the 1950’s (Dr Wild, T7, p34).   In summary our examination reveals there is material pointing to a diagnosis of cervical spondylosis with a clinical onset in the early eighties, with some neck symptomalology described from the late forties onwards.

34.     In turning to the remaining element of the factor, namely “having an injury to the cervical spine”, and mindful of the definition of trauma to the cervical spine noted earlier in this decision, we acknowledge that there was material pointing to Mr Hunt having been involved in a number of forced landings during his service.  However, our examination did not reveal any material pointing to Mr Hunt as having experienced a discrete injury to his cervical spine during service that was congruent with the features of such an injury as defined in the definition of “trauma to the cervical spine” contained within paragraph 9 of the SoP Instrument No 33 of 2005.   To be more specific there was no material pointing to Mr Hunt experiencing a discrete injury to his cervical spine, which, within twenty four hours of the injury being sustained, caused the development of symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine, with such signs and symptoms lasting for a period of at least seven days or medical intervention, as defined, occurring.

35.     In the absence of material pointing to a necessary element of the factor we conclude that the hypothesis as nominated is not consistent with the factor defined within the SoP Instrument No 33 of 2005.  In such circumstances, a hypothesis linking the condition of Mr Hunt’s cervical spondylosis with his service cannot be considered to be a reasonable hypothesis.  We so find.

36.     Our analysis has been undertaken in relation to the SoP existing for cervical spondylosis, at the time of our decision (Instrument 33 of 2005).  In considering the SoP in existence at the time of the primary decision (Instrument 50 of 2002), our examination reveals no significant difference between the factor considered and the definition of trauma to the cervical spine.  Further examination under the earlier SoP would therefore not alter the outcome.

37.     With the finding that no reasonable hypothesis exists linking Mr Hunt’s cervical spondylosis with his service, we consider it unnecessary to pursue examination of other aspects of the causation linkage between the kind of death suffered by Mr Hunt and his service. Such is the case, as the remaining causative links nominated in the hypothesis were ‘being obese’ and ‘lack of exercise’ were postulated as consequences of the cervical spondylosis.

38.     In such circumstances, a reasonable hypothesis linking carcinoma of the colon with Mr Hunt’s service is found not to exist, with the consequence that Mrs Hunt fails in her claim, with the decision under review being affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member, and Rear Admiral A R Horton AO, Member

Signed:         ................[sgd]................................................................
  Associate

Date/s of Hearing  12 July 2006 and 15 March 2007
Date of Decision  6 June 2007
Counsel for the Applicant         Ms E Wood
Solicitor for the Applicant          Ms J Pollock, Legal Aid Commission
Solicitor for the Respondent     Mr N Bunn, Department of Veteran’s Affairs