Huxley and Repatriation Commission (Veterans' entitlements)
[2025] ARTA 1173
•25 July 2025
Huxley and Repatriation Commission (Veterans' entitlements) [2025] ARTA 1173 (25 July 2025)
Applicant:Brian Huxley
Respondent: Repatriation Commission
Tribunal Number: 2023/1041
Tribunal:Senior Member McCarthy
Place:Canberra
Date:25 July 2025
Decision:The decision under review is affirmed.
..............[SGD]...................
Senior Member McCarthy
Catchwords
VETERANS – claim for disability pension arising from several stated diseases – whether a reasonable hypothesis exists that the veteran’s disease, in each case, was war-caused – hypothesis put forward that each disease was caused by the applicant’s smoking and consumption of alcohol which was caused by his service – hypothesis not supported by the material, meaning hypothesis not reasonable – in the case of one disease where no applicable Statement of Principles, no material pointing to why the hypothesis that the disease was war-caused was reasonable – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024, s 8
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Sch 16, 17
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 9, 13, 120, 120A, 196BCases
Arnott v Repatriation Commission [2001] FCR 262
Border v Repatriation Commission (No 2) [2010] FCA 1430
Gorton and Repatriation Commission [2001] FCA 286
Hamling v Repatriation Commission [1989] FCA 510
Hill v Repatriation Commission [2005] FCAFC 23
Hunter v Repatriation Commission [2010] FCA 145Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127
Repatriation Commission v Deledio (1998) FCA 391
Secondary Materials
Statement of Principles concerning Cerebrovascular Accident (Stroke), (No. 45 of 2024)
Statement of Principles concerning Vascular Neurocognitive Disorder (Reasonable Hypothesis) (No. 9 of 2023)
Statement of Reasons
In September 2020, the applicant claimed compensation in the form of a pension under the Veterans’ Entitlements Act 1986 (the Act) for several medical conditions from which he now suffers. He claimed compensation was payable for each of the conditions because, he said, they were caused by his smoking of tobacco and his consumption of alcohol which, he said, was caused by his military service. The respondent denied liability because, it said, the conditions were not war-caused.
The applicant applied to the Veterans’ Review Board (the VRB) for review of the respondent’s decision which affirmed the respondent’s decision.
The applicant then applied to Administrative Appeals Tribunal (the AAT) for review of the VRB’s decision. On 14 October 2024, the AAT ceased to exist consequent on commencement of the Administrative Review Tribunal Act 2024 (the ART Act) and repeal of the Administrative Appeals Tribunal Act 1975.[1]
[1] Administrative Review Tribunal Act 2024, section 2; Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Schedule 17.
Commencement of the ART Act included commencement of s 8 of the ART Act pursuant to which the Administrative Review Tribunal (the Tribunal) was established. Pursuant to Schedule 16, Part 5, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, the Tribunal is empowered and was required to hear and determine the applicant’s application to the AAT. These reasons concern my determination of his application.
Factual background
The applicant was born on 10 August 1934 and is now 90 years old. He was enlisted in the National Service from 28 April 1953 to 2 August 1953 and in the Citizen Military Forces from 3 August 1953 to 12 August 1953. He served in the Australian Regular Army from 13 August 1953 to 12 August 1962.
The applicant was deployed to Japan from August 1954 to January 1955 and to Korea from 27 January 1955 to 7 January 1956.
The applicant contended many medical conditions from which he now suffers were caused by his operational service. I deal with them below, but first outline the statutory scheme governing whether compensation is payable under the Act for these conditions.
Legislative framework
Section 9 of the Act relevantly provides the following in relation to war-caused injuries or diseases:
(1) Subject to this section and section 9A,[2] for the purposes of this Act, … a disease contracted by a veteran shall be taken to have been war‑caused if:
(a)… the disease contracted by, the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
[2] Section 9A is not relevant for present purposes.
The respondent accepted the applicant’s service in Korea was operational service.
“Disease” is relevantly defined in s 5D(1) of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition”, subject to stated exclusions that are not applicable in this case. The respondent accepted that the conditions for which the applicant was claiming compensation are diseases as defined.
Section 13 of the Act provides that where a veteran is incapacitated from a “war-caused disease”, the Commonwealth is (subject to the Act) liable to pay a pension by way of compensation to the veteran.
Where a veteran’s service was operational service, as in this case, ss 120 and 120A of the Act provide a standard of proof and a method for determining whether the veteran’s incapacity from disease was war-caused.
Section 120 relevantly provides:
Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from .. disease of a veteran, … relates to the operational service rendered by the veteran, the Commission shall determine that the disease was a war – caused disease .. unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
..
(3) In applying subsection (1) .. in respect of the incapacity of a person from .. disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
..
(b) that the disease was a war - caused disease ..;
.. if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the .. disease with the circumstances of the particular service rendered by the person. (emphasis added)
Note: This subsection is affected by section 120A.
Referring to the notes in s 120, s 120A of the Act relevantly provides:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
..
(3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis. (emphasis added)
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from … disease .. of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
..
(b) the kind of disease contracted by the person;
The so-called ‘reasonable hypothesis’ test was explained in Repatriation Commission v Deledio,[3] on which the applicant relied. In that case, a Full Court of the Federal Court said:
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.
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.
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 proven 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.
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 … 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.[4]
[3] [1998] FCA 391.
[4] [1998] FCA 391 at 97.
The Full Court’s explanation of how to determine whether a hypothesis is reasonable should not be used in substitution for the legislation,[5] but it usefully identifies four necessary steps for the purpose of deciding whether a hypothesis for why a disease was war-caused is reasonable.
[5] Hill v Repatriation Commission [2005] FCAFC 23 at [16] – [17].
In relation to the third step, in Arnott v Repatriation Commission[6] the Federal Court said:
12 The Full Court in Deledio approved (at 95-96) the following passage from the decision of the primary judge reported at (1997) 47 ALD 261 at 275:
"it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can `uphold' the hypothesis.
...
Therefore when s 196B(2) says a factor `must ... exist' and `must be related to service', it is not interfering with the functions of ss 120(1) and 120(3). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). ... The particular claim then has to fit the template laid down in the SoP.[7] (emphasis added)
[6] [2001] FCR 262
[7] [2001] FCR 262 at [12]
In Border v Repatriation Commission (No 2),[8] the Federal Court reiterated that the third step is about testing a hypothesis, not examining the correctness of the facts on which it rests. In this respect, the Court drew on an earlier decision of the Federal Court in Hunter vRepatriation Commission[9] in which the Court stated:
The task at hand, therefore, is the testing of a hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest. Consequently, the Tribunal is not to determine whether the material before it establishes the premises in question; rather it is to determine whether the material before it “points to some fact or facts (“the raised facts”) which support the hypothesis” (Bushell v Repatriation Commission (1992) [1992] HCA 47; 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ) which is another way of saying that “the material before the Commission must raise some fact or facts which give rise to the hypothesis” (Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 569 per Mason CJ, Gaudron and McHugh JJ). A corollary of those principles is that in this third stage, proof of the facts is not required nor, correspondingly, is the Tribunal called upon to make findings of fact.[10]
[8] [2010] FCA 1430
[9] [2010] FCA 145
[10] [2010] FCA 145 at [13]
I turn to the applicant’s diseases for which he claimed compensation.
Intervertebral disc prolapse
The applicant initially claimed compensation for this disease and pressed that claim before the VRB. At the hearing before me, Mr Cullen representing the applicant initially pressed the claim but, after further consideration, agreed it should be put to one side. Accordingly, the decision to reject that aspect of the applicant’s claim for compensation will be affirmed.
Malignant neoplasm of the prostate
The applicant initially contended for compensation with reliance on malignant neoplasm of his prostate, more commonly known as prostate cancer. The applicant pressed that aspect of his claim before the VRB but withdrew it in this proceeding. Accordingly, the decision to reject that aspect of the applicant’s claim for compensation will be affirmed.
Cerebral Vascular Accident (Stroke)
According to the medical records, the applicant suffered a stroke in January 2017, another in April 2019 and probably a third in September 2019.
The applicant contended for a hypothesis that peer pressure and the pressures of service led to his consumption of alcohol which led to the stroke, and that the stroke was therefore war-caused.[11]
[11] Applicant statement of issues, facts and contentions, undated, page 6
In support of his claim that drinking alcohol was caused by peer pressure during his military service, the applicant relied on a document headed “Claimant report-alcohol” signed by him and dated 16 December 2020 which was provided as part of his claim for compensation.[12] On the document, the applicant stated he started drinking in 1953 because of “peer pressure”, “work stress” and “apprehension”; that he became “dependent on alcohol”; and that he continues to drink. Mr Cullen relied also a contemporaneous record evidencing the applicant being disciplined for consuming “intoxicating liquor to excess” on Anzac Day, 25 April 1959.[13]
[12] T documents, page 107
[13] T documents, pages 276 277
The Claimant report-alcohol document written in 2020 is not material which points to facts that support the hypothesis: it is a statement of his claim about how much alcohol he drank and what caused him to drink. However, I take into account that the applicant is (Mr Cullen said) too unwell to give evidence. I also take into account that if the applicant had been well enough to do so he would, more than likely, have given oral evidence that the matters he wrote in the document are true. It is not a matter of proof.
The first of the Deledio steps requires a basis of reasoning, without assumption of truth, for why the stroke was war-caused that takes into account known facts and is not purely speculative or fanciful.[14], I accept the applicant’s hypothesis meets that first step.
[14] Hamling v Repatriation Commission [1989] FCA at [14]
The second step was to identify whether there is an operative SOP in relation to the applicant’s stroke. The applicant submitted there is an operative SOP: Statement of Principles concerning Cerebrovascular Accident (Stroke), (No. 45 of 2024) (SOP 45). The applicant contended SOP 45 is applicable notwithstanding the VRB reviewing the stroke by reference to an earlier SOP that was operative at the time: Statement of Principles concerning Cerebrovascular Accident (No. 65 of 2015). The applicant relied on the Federal Court’s decision in Gorton and Repatriation Commission[15] for why he was entitled to rely on SOP 45. The respondent agreed SOP 45 can and should be applied.
[15] [2001] FCA 286
The third step was to form an opinion as to whether, on the material before me, the applicant’s raised hypothesis is reasonable. Pursuant to s 120(3), if that opinion could not be formed, I was required to be satisfied beyond reasonable doubt there is no sufficient ground for determining that the disease was war-caused. Pursuant to s 120A(3), the necessary opinion could be formed “only if” SOP 45 “upholds the hypothesis”. For SOP 45 to do so, the material before me needed to point to facts to support the existence of at least one of the 92 factors in section 9 of SOP 45 and, per section 10(1), that such a factor related to the applicant’s relevant service. Section 10(1) of SOP 45 provides:
10 Relationship to service
(1) The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
In his statement of issues, facts and contentions, Mr Cullen relied on factors 9(1) and 9(3), but at hearing changed his position to rely instead on factors 9(4), 9(16)(e), 9(19) and 9(56)(c).
Factor 9(4) states:
consuming alcohol in an amount of at least 250 grams per week, for at least the 1 year before clinical onset (emphasis added).
The applicant did not refer to any material that pointed to a fact or facts to support the existence of factor 9(4) and I was unable to identify any such material. Also, the material before me was to the contrary. Factor 9(4) concerns the applicant’s consumption of alcohol in the year before clinical onset of the stroke, namely 2016, not earlier years. The independent and contemporaneous medical records from Ningi Medical Centre state that from 2015 the applicant had two or three drinks of light beer or rum or wine each day. Assuming the applicant had three standard drinks every day which is to make an assumption in his favour, and where a standard drink is 10 grams, his total consumption is still only 210 grams per week which is less than the consumption required to meet factor 9(4).
Mr Cullen next relied on factor 9(16)(e) which states:
using one or more of the following drugs within the 72 hours before clinical onset:
(e) opioids, including heroin
In support, Mr Cullen relied on scripts for painkillers given to the applicant by doctors at Ningi Medical Centre.
Whilst there were scripts for painkillers, I was not taken to any material pointing to the prescribed drugs containing opioids or, if they did, to the applicant taking them within 72 hours before clinical onset of any of the strokes.
A second concern, per s 10(1) of SOP 45, was the need for material pointing to the existence of factor 9(16)(e), if it existed, being related to the applicant’s war service. Mr Cullen did not refer me to any material of that kind, relying only on the broad claim that alcohol consumption led to the strokes.
One of the difficulties with that submission was the absence of any material to support a connection between alcohol consumption during his war service and the taking of opioids 72 hours before the clinical onset of the stroke.
Another was the absence of material pointing to the applicant’s consumption of alcohol being related to his war service in any of the ways he stated in his document dated 16 December 2020. True, there is evidence of him being disciplined for being intoxicated on Anzac Day 1959, but that was for only one day.
In other words, nothing was put forward to support the hypothesis that the existence of factor 9(16)(e), if it existed, related to the applicant’s war service.
Next, Mr Cullen relied on factor 9(19) which states:
taking a non-topical, non-steroidal, anti-inflammatory drug, excluding aspirin, for a continuous period of at least 30 days before clinical onset, where the last dose of the drug was taken within the 7 days before clinical onset.
Note: non-steroidal, anti-inflammatory drug is defined in the Schedule 1 - Dictionary.
The definition in the Dictionary is as follows:
non-steroidal, anti-inflammatory drug means any of a large chemically heterogeneous group of drugs that inhibit cyclooxygenase activity, resulting in decreased synthesis of prostaglandin and thromboxane precursors from arachidonic acid. In addition to anti—inflammatory actions, they have analgesic, antipyretic, and platelet inhibitory actions.
Mr Cullen relied on material pointing to scripts provided to the applicant. That material pointed to the applicant taking the prescribed medications, but not to him taking any of the prescribed drugs “for a continuous period of at least 30 days before clinical onset” of a stroke or to the last dose being taken “within the 7 days before clinical onset” of a stroke.
Also, there was material pointing to the contrary. Dr Saines, a neurologist who gave evidence in this proceeding, noted that the medical records from Ningi Medical Centre mention scripts for Ibuprofen in October 2015 and Celebrex in August 2021. The prescription for Celebrex was “as required”, not regular. Dr Saines stated there is no mention of the applicant taking non-steroidal, anti-inflammatory medications at the time of his presentation with a stroke in 2017, with a head injury in 2019 or at the time of his second stroke in 2019.
A second concern, consistent with my concern about factor 9(16)(e), was the absence of any material pointing to a connection between alcohol consumption during his war service and the taking of any of the prescribed drugs in the manner described in factor 9(19) before the clinical onset of the stroke. In other words, nothing was put forward pointing to factor 9(19), if it existed, being related to the applicant’s war service.
Last, Mr Cullen relied on factor 9(56)(c) which states:
for brain ischemia only, where smoking has ceased before clinical onset:
(c)smoking at least 10 pack-years before clinical onset;
Note: one pack-year is defined in the Schedule 1 - Dictionary.
The definition of one pack-year in the Dictionary is as follows:
One pack-year means the amount of tobacco consumed in smoking 20 cigarettes per day for a period of 1 year, or an equivalent amount of tobacco products.
Note 1: an equivalent amount of tobacco products is 7,300 grams smoking tobacco by weight, either in cigarettes, pipe tobacco or cigars, or a combination of same. For pipe tobacco, cigars or combinations of multiple tobacco types, 1 gram of tobacco is considered to be equal to one cigarette.
Note 2: Pack-years are calculated by dividing the number of cigarettes smoked per day by 20 and multiplying this number by the number of years the person has smoked. For example, smoking 10 cigarettes per day for 10 years is equal to 5 pack-years, and smoking 40 cigarettes per day for 10 years is equal to 20 pack-years.
At hearing, Dr Saines said the applicant’s strokes involved a blockage of vessels to his brain and therefore brain ischemia. In his claim, which I accept, the applicant stated he started smoking in 1947 and stopped smoking in 1973. The material before me also points to the applicant smoking for at “least 10 pack-years” before the clinical onset of the strokes. In summary, the material before me points to the existence of factor 9(56)(c).
The question then was whether the material points to the existence of factor 9(56)(c) being related to the applicant’s service.
In this regard, s 196B(14) of the Act provides:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury--it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person--it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
The material before me included a document headed “Claimant report-tobacco” signed by the applicant and dated 16 December 2020 which was provided as part of his claim for compensation.[16] In the document, the applicant stated his level of smoking between 1954 and 1956 was because of “peer pressure” and “stress”. Like the applicant’s claim report regarding alcohol, the claim report regarding tobacco is not material which points to facts to support the hypothesis: it is a statement of his claim. However, again, I am prepared to accept that the applicant would have given evidence stating the information he wrote in the document is true had he been well enough to do so.
[16] T documents page 108
The difficulty is that whilst the applicant claims that peer pressure or stress caused his smoking, there was no evidence as to why that is so. For example, there was no reference to any events or circumstances that occurred during the applicant’s service that led to his level of smoking. Also, referring to s 196B(14) which sets out circumstances in which a factor is related to service, there was no submission or evidence as to whether any of those circumstances applied. For example, referring to s 196B(14)(d), there was no submission or evidence pointing to why the applicant’s smoking “was contributed to in a material degree by, or was aggravated by” his service.
Also, the material before me was to the contrary. The applicant stated he started smoking tobacco 1947, some six years before commencement of his service in 1953. Admittedly, as Mr Cullen pointed out, this meant the applicant commenced smoking when he was 13 years old and, one hopes, he was not a heavy smoker at that time. However, that the applicant had been smoking for many years prior to commencement of his service suggests his smoking is unrelated to his service.
In Military Rehabilitation and Compensation Commission v Wall[17] on which the respondent relied, a Full Federal Court by majority commented on claims for compensation arising from a veteran smoking during their military service and subsequently suffering a smoking-related accident or illness. The Court said:
In any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness. In a case where it is concluded that the accident or illness was caused by smoking after the period of military service, it will be necessary for the person to show that he or she became so habituated to smoking during his or her period of military service, that this habit was the effective cause of the later smoking which result in the disease. That is likely always to be a difficult case for an applicant to make good.[18]
[17] [2005] FCAFC 127
[18] [2005] FCAFC 127 BAT [35]
Where, in my view, the material does not support a hypothesis that the applicant’s smoking is related to his service, and where there is evidence to the contrary, in my view the material does not point to the existence of factor 9(56)(c) being related to the applicant’s service.
For these reasons, the decision to refuse compensation by reference to the applicant’s strokes in 2017 and 2019 is affirmed.
Vascular dementia
The parties agreed the applicant suffers from vascular dementia. The time of its clinical onset is uncertain, as is often the case for a person in old age, but the medical opinions of different doctors indicate clinical onset occurred between September 2020 and January 2022. Mr Cullen did not suggest otherwise.
Mr Cullen submitted a hypothesis that the applicant’s war service caused him to smoke and drink; that these behaviours led to his strokes; the strokes led to the onset of the applicant’s vascular dementia; and that by this chain of events the dementia was war-caused.
As to why that hypothesis is reasonable, Mr Cullen relied on the Statement of Principles concerning Vascular Neurocognitive Disorder (Reasonable Hypothesis) (No. 9 of 2023) (SOP 9) which, he contended, upholds the hypothesis because factors 9(1), (2) and/or (11) in SOP 9 exist.[19]
[19] Mr Cullen initially contended factor 9(3) concerning a person having hypertension before the clinical onset of vascular neurocognitive disorder exists, but at hearing, said he no longer relied on that factor
Factor 9(1) states:
having a cerebral vascular accident or some arachnoid haemorrhage before the clinical onset of vascular neurocognitive disorder.
Where the applicant first suffered a stroke in January 2017 which is before the clinical onset of his vascular neurocognitive disorder (or dementia) which occurred not earlier than 2019, the material before me supports the existence of factor 9(1). Dr Saines agreed.[20]
[20] Dr Saines medico-legal report dated 27 March 2025 at [3.11]
The next question, pursuant to section 10(1) of SOP 9, was whether the material supports a hypothesis that the existence of factor 9(1) is “related to the relevant service rendered by the [applicant]”.
The applicant’s hypothesis for why the dementia is war-caused depended on his hypothesis that the applicant’s stroke (or CVA) was war-caused. Where, in my view, SOP 45 does not uphold the latter hypothesis, it follows the material does not point to the existence of factor 9(1) being related to the applicant’s service.
Factor 9(2) states:
having a specified disease of the cerebral vessels, in the presence of neuroimaging (magnetic resonance imaging or computed tomography) findings of cerebral white matter lesions, haemorrhage or infarction, before the clinical onset of vascular neurocognitive disorder.
The applicant’s reliance on factor 9(2) has the same difficulty.
Dr Saines acknowledged the applicant has a disease of the cerebral vessels and that neuroimaging in 2017 showed chronic microangiopathy (meaning small vessel cerebral vascular disease).[21] That occurred before the clinical onset of the applicant’s dementia, which supports the existence of factor 9(2).
[21] Dr Saines medico-legal report dated 27 March 2025 at [3.1]
However, there needed to be material to support the hypothesis that the existence of factor 9(2) is related to the applicant’s service.
The applicant did not lead any evidence to support that hypothesis directly. Rather, the applicant’s hypothesis was that the disease referred to in factor 9(2) is war-caused because it arose from the applicant’s stroke (or CVA) which, according to his earlier hypothesis, was war-caused.
Where, in my view, SOP 45 does not uphold the applicant’s hypothesis regarding the applicant’s stroke, it follows the material does not point to the existence of factor 9(2) being related to the applicant’s service.
Factor 9(11) states:
an inability to undertake any physical activity greater than 3 METs for at least 5 years within the 20 years before the clinical onset of vascular neurocognitive disorder.
Note: MET is defined in the Schedule 1- Dictionary.
The definition of MET in the Dictionary is as follows:
MET means a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute, 1.0 kcal/kg of body weight per hour or resting metabolic rate.
Why the applicant relied on factor 9(11) was unclear. Mr Cullen acknowledged he did not have any evidence pointing to the existence of the factual requirements in factor 9(11). There was also evidence to the contrary, namely the records from the Ningi Medical Centre that record the applicant was physically mobile and active, playing golf and lawn bowls, five years prior to his first stroke.
For these reasons, the decision to refuse compensation by reference to the applicant’s vascular dementia is affirmed.
Polyps
The applicant initially contended for compensation by reference to two conditions: colorectal adenoma and hyperplastic polyps. On the medical evidence, the applicant has suffered from both since 2006. At hearing, Mr Cullen stated the applicant no longer pressed a claim for compensation by reference to the colorectal adenoma but did so by reference to the polyps.
At hearing, Mr Cullen forward a hypothesis that the applicant’s polyps are war-caused because they were caused by the applicant’s smoking and drinking. As to why that is so, per his hypothesis, Mr Cullen said “the only evidence we have is Dr Google” which, he said, states that excessive drinking and smoking can cause polyps.
Mr Cullen noted there is no SOP in force for the purpose of determining whether a hypothesis that polyps is war-caused is reasonable. I assumed for present purposes, the Repatriation Medical Authority has not declared that it does not propose to make a SOP regarding polyps with the consequence that, pursuant to s 120A(4), s 120A(3) of the Act does not apply. Accordingly, whether the hypothesis is reasonable needed to be decided on the evidence. Here, the applicant’s claim struck problems.
First, Mr Cullen asserted what Dr Google states, but did not take me to any evidence that it does so or to any context, provisos or basis for the alleged statement.
Second, there was no medical evidence that the applicant’s polyps were caused by his smoking. There was also medical evidence to the contrary, namely the evidence of Dr Sethi, a physician, gastroenterologist and hepatologist, who commented on the applicant’s family history which, he said, “strongly suggests that his colonic polyps have a very significant genetic component”. Dr Sethi also opined that where the applicant ceased smoking in 1973 and did not develop polyps until 2006, the applicant’s smoking “is unlikely to have played any significant causative role.”
Third, even if smoking in some way contributed to the polyps, in my view there was no material pointing to the applicant’s smoking being related to his service for the reasons given and, accordingly, the material did not point to the polyps being related to the applicant’s service by reason of his smoking.
As for the applicant’s drinking, even if Dr Google states excessive alcohol consumption can cause polyps, I had no evidence, especially medical evidence, pointing to why that hypothesis is reasonable in this case. Then there is the absence of evidence pointing to why the applicant’s drinking is related to his service which, in turn, means that even if the drinking in some way materially contributed to the polyps the material did not point to the polyps being related to service.
Where the material before me does not raise a reasonable hypothesis for why the applicant’s polyps are war-caused, pursuant to s 120(3) of the Act I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the polyps is a war-caused disease.
Conclusion
For the reasons given, the decision under review is affirmed.
Date of Hearing: 4 June 2025
Solicitor for the Applicant: Not applicable
Counsel for the Applicant: K Cullen
Solicitor for the Respondent: Sparke Helmore Counsel for the Respondent: N Milutinovic
0
9
0