JEAN MOORE and REPATRIATION COMMISSION
[2012] AATA 259
•4 May 2012
[2012] AATA 259
Division VETERANS' APPEALS DIVISION File Number(s)
2010/5414
Re
JEAN MOORE
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Dr R J Walters RFDDate 4 May 2012 Place Hobart The decision under review is affirmed.
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Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - war widow’s pension – whether death of veteran from metastatic cancer of the liver war-caused - whether death contributed to by chronic bronchitis and/or emphysema - no diagnosis of respiratory disease - hypothesis not upheld by SoP - whether veteran's diet during service causative of primary carcinoma of the bowel – hypothesis not upheld by SoP- decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986, ss 8, 13, 120(1), 120(3), 120A(3)
Instrument No 1 of 2004 and Instrument No 39 of 2011 – Malignant Neoplasm of the Colorectum
Instrument No 30 of 2004 – Chronic Bronchitis and EmphysemaCASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Codd [2007] FCA 877
Collins v Repatriation Commission (2009) 177 FCR 280
Repatriation Commission v Law (1981) HCA 57Brew v Repatriation Commission (1999) 94 FCR 80
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
Dr R J Walters RFD
The applicant, Jean Moore, was the wife of Joe Richard Moore (the veteran) who died on 20 June 2007 at the age of 82 years. The veteran served in the Australian Army on two separate periods between 16 July 1943 and 24 September 1946 and between 21 September 1965 and 24 September 1966 which constituted eligible war service within the meaning of the Veterans’ Entitlements Act 1986 (the Act). Mrs Moore seeks the review of a decision which rejected her claim for a war widow’s pension on the basis that the death of the veteran was not war caused.
Oral evidence was given by the applicant, Jean Moore, Eric Colquhoun, General Practitioner, Professor Richard Fox, Physician Royal Melbourne Hospital and Professor John Cade, Principal Specialist in Intensive Care Royal Melbourne Hospital. Written statements were received in evidence from members of the applicant’s family namely Neville Moore, the veteran’s brother, Evelyn Moore the veteran’s daughter and Heather Nettle the veteran’s daughter. The T Documents were received into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Also tendered were extracts from the veteran’s departmental medical file, the veteran’s service medical documents, the Writeway Report dated 12 September 2011 prepared by Major Ian Hawke, Dr Colquhoun’s clinical notes, various medical reports prepared by the medical witnesses and annexures E to V referred to in the Applicant’s Statement of Facts, Issues and Contentions,
The Medical Certificate of Cause of Death Certificate states that the disease or condition leading to directly to death was metastatic cancer of the liver and the antecedent cause was probably primary carcinoma of bowel (based on CT scan) with other significant conditions being cachexia. The death certificate was signed by Dr Eric Colquhoun, the veteran’s treating medical practitioner.
CLAIMS
It is contended on behalf of the applicant that the veteran’s death was accelerated by his chronic obstructive airways disease (COAD) which was attributable to his service and further that the veteran’s diet during service caused a deterioration in his health which continued for the rest of his life and contributed to his death. The Repatriation Commission contended firstly, that there is not a medically diagnosed condition of COAD and nor was it related to the veteran’s service. Secondly, there is no evidence that connects the veteran’s poor state of health with his diet during service.
It was accepted that the disease that was the primary cause of the veteran’s death was as stated in the Death Certificate. The applicant argued that there was more than one medical cause of death and that the veteran’s COAD hastened his death.
STATUTORY PROVISIONS
As the veteran’s army service was outside Australia the whole of his service constitutes “operational service” within the meaning of the Act. The relevant standard of proof for entitlement is that provided by subsections 120(1), 120(3) and 120A(3) of the Act.
Subsection 120(1) requires the Tribunal to determine that the veteran’s death was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination. Pursuant to 120(3) the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war caused after considering the whole of the material before it and being of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service.
As the claim was made after 1 June 1994, pursuant to section 120A(1) and (3), a hypothesis connecting the veteran’s death with the circumstances of service can only be reasonable where a Statement of Principles upholds the hypothesis.
CONSIDERATION
The leading case explaining the application of subsections 120(1) to (3) is Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. In that case the Full Court (Beaumont, Hill and O’Connor JJ) outlined four steps which can be summarised as follows:
·Step 1 – Whether the material points to the requisite hypothesis.
·Step 2 – Is injury, disease or death the subject of an SoP?
·Step 3 – Is the hypothesis upheld by the relevant SoP?
·Step 4 – Is the Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death was war caused?
CHRONIC BRONCHITIS AND/OR EMPHYSEMA
Step 1
The Tribunal is satisfied that the hypothesis raised by the applicant and outlined above is raised by the material before it and in particular the medical evidence of Dr Colquhoun who opined that:
“It is an entirely reasonable hypothesis that Mr Moore’s death of metastatic cancer, deposits in the liver was hastened or accelerated by COAD (Chronic Obstructive Airways Disease)”.
Step 2
The Statement of Principles relied upon by the applicant is Instrument No 30 of 2004 concerning Chronic Bronchitis and Emphysema
The Tribunal is satisfied that the identified SoP is relevant to the stated cause of the veteran’s death. Dr Colquhoun stated that it was his understanding that Mr Moore’s duties had involved working with chlorine powder which he said, when mixed with water, generates chlorine.
Step 3
The next question for the Tribunal to determine is whether the hypothesis raised is upheld by the relevant SoP. That is whether the hypothesis is consistent with the template found within the SoP. This involves a consideration of the material before the Tribunal.
With respect to Instrument No 30 of 2004 the factor relied on, namely 5(b) requires exposure to a respiratory tract irritant resulting in signs and symptoms of acute and serious insult to the lower respiratory tract within ten years immediately before the clinical onset of chronic bronchitis and/or emphysema.
The definition of respiratory tract irritant as stated in paragraph 8 means:
“(a) mustard gas; or
(b) Lewisite; or
(c) chlorine gas; or
(d) phosgene; or
(e) phthalic anhydride; or
(f) anhydrous ammonia gas; or
(g) another respirable agent which causes comparable tissue damage”.
There are references to COAD in the veteran’s Repatriation Department medical documents where “mild COAD” was reported on 18 October 1989 by the medical examiner. In a report from Dr George Cowen dated 29 June 1989, he includes chronic obstructive airways disease in his summary. Dr Shirley MacIntyre’s radiological report of 1 June 2007 states “the lungs are moderately overinflated and the appearance of the lung fields is consistent with COPD”.
In response to a question as to whether Dr Colquhoun had observed a respiratory disease in the veteran, he replied that this was difficult because the veteran was not an active person and mostly remained seated in the chair. Dr Colquhoun commented that the veteran had not shown symptoms of respiratory disease other than “noticeably rapid breathing”. He also commented that the veteran had a thin body which accompanies the progression of respiratory disease. Dr Colquhoun stated that with the benefit of hindsight, he would have included respiratory disease as a cause of death. In his opinion, the veteran’s respiratory disease meant that he was less able to cope with the progression of his cancer.
Dr Colquhoun accepted that the practice medical notes do not include any reference to respiratory disease or medication prescribed for respiratory disease during 2003 and 2007 when the veteran was a patient of the practice. The medical notes indicate that the veteran first became Dr Colquhoun’s patient on 28 May 2007 and was under his care until his death on 19 June 2007, a period of 22 days, a large portion of which the veteran spent as an inpatient in hospital. Prior to that he was treated by Dr Metz of the same practice.
It was during the period of Dr Colquhoun’s treatment of the veteran that he said that he had conversations with him concerning his period of service. Dr Colquhoun was unable to say how he became aware that the veteran had worked with chlorine powder but said that he had picked it up in correspondence with the applicant’s lawyer.
Professor Cade noted that the list of respiratory tract irritants as contained in the SoP definition is a list of chemical warfare agents that were widely used in the First World War, subsequently banned and not used during the Second World War. Professor Cade commented that chlorine is not a warfare agent and was used separately in much lower doses which would not cause the sort of affects that are contemplated by the SoP. He said that it was and still is used as a sterilising agent for water but the doses used are not at a level which causes damage to humans or to those treating water in the usual manner. Professor Cade went on to comment that a dose of chlorine that would produce any significant damage would be “immediately apparent acutely” in the form of weeping eyes and nose, a cough and if very significant, death can result.
Factor 5(b) requires that the exposure be within ten years immediately prior to the clinical onset of chronic bronchitis.
The term “clinical onset” has been defined as the time when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time (Repatriation Commission v Cornelius [2002] FCA 750 at 25 which approved the Tribunal’s decision in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670).
There is no direct evidence regarding the veteran’s service activities which is the usual situation in such cases. The applicant, Jean Moore, said that she recalled on one occasion when they were treating their backyard swimming pool with chlorine, that the veteran had warned her to be careful. He said that he had used a white powder in “big quantities” for the purpose of clearing the water.
In Part 4 of the Writeway Report under the heading Use of Chlorine and Other Chemicals, the various chemicals that were in common use during the veteran’s service are listed. At paragraph 26 it is reported:
“In his role as Hygiene Dutyman these chemicals and insecticides would have been in regular use by the late Veteran, more than that, he would himself have been the major ‘hands on’ user of most of the substances shown above. It is worth noting that he had completed a Regimental Water Duties Course and it is very probable that his duties also included ensuring that the units potable water supply was safe for use. As such he would have used the water purification substances listed in the commodity codes. While chlorine is used in large scale water purification it is a very dangerous substance – it is not surprising that it is not included amongst the substances used by smaller units and subunits”.
There was no other evidence that suggested that the veteran had been exposed to chlorine or indeed chlorine gas during either of his periods of service. It was also submitted that the veteran was exposed to DDT when he was on duty with the 4RAR. The only evidence in support was a typed document dated April 1966 which included DDT residual spray amongst a list of insecticides. There was no other evidence regarding the veteran’s use of DDT or that it would be classified as a respiratory tract irritant as defined in paragraph 8.
The respiratory tract disorder has been identified by the applicant as COAD, however there was no evidence of a medical diagnosis of the condition. It was the evidence of Professor Cade who was called on behalf of the respondent, that although a diagnosis of COAD was recorded in 1989, the basis for the diagnosis was not indicated and in his words, its correctness “must be considered doubtful”. Professor Cade noted that although Dr Colquhoun had referred to a diagnosis of COAD in his reports after the veteran’s death, Professor Cade was unable to identify any mention of the condition or of any other respiratory condition or respiratory treatment in Dr Colquhoun’s own practice notes or in the physicians or hospital reports in the months before the veteran died. Professor Cade was thus unable to confirm the presence of a respiratory condition in the veteran.
When asked about the radiological report of COAD in 1989, Professor Cade said that radiology reports indicate a suspicion of a condition and do not constitute a diagnosis. It was his evidence that a diagnosis is acquired following clinical and lung function tests. Professor Cade noted that the veteran’s lung function tests for spirometry at the time were normal and noted Dr Halmagyi’s report of 6 March 1990 in which he confirmed that although the veteran complained of a cough, “spirometry revealed normal lung function”.
In a medical opinion dated 10 April 1990 in response to the veteran’s claim for COAD amongst other disabilities, it is reported:
“Physican Dr Halmagyi has not been able to find any evidence for these conditions. It would be surprising if a lifelong non-smoker, who has always been fit and active and who has not ever to this day, taken any medication were to develop these serious respiratory diseases at the age of 65. Normal chest x-ray, normal blood and lung function tests as well as two examinations by physician Dr Halmagyi (F71 and 89) have excluded the presence of any respiratory disease”.
The Medical Examination Respiratory System Report of 18 October 1989 with respect to the veteran’s claimed condition of COAD and episodes of weakness and nausea includes the result of the spirogram and further, a comment as to the amount of sputum produced daily as “teaspoon full of sputum each morning, watery white”.
When asked during cross-examination what this may indicate Professor Cade responded:
“A teaspoon a day is quite tiny, of course, and watery and white can- if it’s – the mucus is watery and white, that suggests that it’s not massively coming from the lungs, it could easily be coming from the throat. It could be saliva, it could be coming from the back of the nose, of rhinitis or sinusitis or just spit rather than actually sputum from the lungs”.
In response to the symptoms described by the applicant, Professor Cade opined that the previously described diagnosis of chronic enteritis is now called chronic sinusitis where the sinuses have become chronically inflamed. This can cause weeping from both the front and the back of the nose with a resultant post nasal drip which is either coughed out or swallowed.
With respect to any potential contribution from COAD to the veteran’s death Professor Cade opined:
“… even if he did have COAD, which the doctor was unable to confirm, if it was so difficult to confirm and never mentioned clinically, it’s hard to conceive that it would have sufficient severity to be able to contribute to death, but more importantly, Mr Moore had advanced terminal cancer for which death is inevitable in the short term, regardless of any other condition. So it is hard to imagine any other condition, even if it were present, would be able to materially alter the prospect of early death, the inevitability of it, from the advanced cancer which he had”.
Professor Fox opined that the veteran’s respiratory function tests suggested that he did not have severe chronic obstructive airways disease. Professor Fox stated that even it COAD is evident radiologically, normal respiratory function tests suggest that it was not of any great severity.
Professor Fox did not accept that COAD would accelerate death from cancer. On the basis of the known degree of the veteran’s liver metastases, it was his opinion that he would have died from the cancer within a matter of weeks or months in any event.
DISCUSSION AND FINDINGS
In the Tribunal’s consideration as to whether the hypothesis advanced by the applicant is reasonable, the evidentiary material is assessed in accordance with the relevant template, in this case SoP No 30 of 2004.
Clause 8 of the SoP states that “death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition which was contributed to by the person’s chronic bronchitis and/or emphysema.
Whilst the applicant accepts that the primary cause of the veteran’s death was metastatic cancer of the liver, it was submitted by the applicant’s counsel, Jonathon McCarthy, that the Court’s have acknowledged that there can be more than one cause of death (Repatriation Commission v Codd [(2007] FCA 877, Collins v Repatriation Commission (2009) 177 FCR 280 and Repatriation Commission and Law (1981) HCA 57). Mr McCarthy argued that there is evidence which suggests that the veteran’s respiratory disease contributed to, and indeed hastened the veteran’s death.
The factor relied upon in the SoP as connecting the veteran’s chronic bronchitis and/or emphysema with his death is Factor 5(b) which contains the following elements:
1.Exposure to a respiratory tract irritant
2.Signs and symptoms of acute serious insult to the lower respiratory tract
3.That the exposure and resulting signs and symptoms occur within ten years immediately before the clinical onset of chronic bronchitis and/or emphysema
Evidence put forward as suggestive of chronic bronchitis as the term is defined in the SoP was given by the applicant and in statements from family members who had noticed and commented upon the veteran’s cough and excessive mucous production. There is earlier evidence contained in the 1989 report that the amount of sputum coughed up by the veteran was not significant at that time. There was also evidence that the veteran had on occasions coughed up a black substance following his return from service.
Even if it is accepted that the veteran suffered from chronic bronchitis, Clause 4 requires that at least one of the factors set out in Clause 5 must be satisfied to relate the condition to the veteran’s relevant service.
It is the Tribunal’s conclusion that there is no evidence that the veteran was exposed to a respiratory tract irritant as the term is defined in Clause 8.
In the veteran’s Claim Form dated 29 August 1989, he stated:
“I believe that the continual handling of the pesticide sprays and handling the chlorine powder contributed to my present illness”.
Dr Colquhoun suggested that when chlorine is mixed with water it can produce chlorine gas, it can cause lung damage and contribute to COAD. The Writeway Report however does not include chlorine in the range of chemicals commonly used by the late veteran’s unit. The veteran had stated to his wife that he used a white powder to sterilise water.
The applicant relied on an extract from the First Australian Army Orders which stated that water for use in the field would be sterilised by the method of superchlorination and dechlorination. It is notable however, that the Orders are dated 10 February 1943 which would relate to the veteran’s first period of service and not the period contemplated by the SoP.
Whilst the veteran may have believed that the powder he used for water sterilisation purposes was chlorine powder when he completed his claim form, there is no confirmatory evidence that this was the case and the available evidence suggests that it was not. There is no evidence that the veteran had told Dr Colquhoun or his wife that the product he used for water sterilisation purposes was chlorine. In any event there is no evidence that the veteran was exposed to chlorine gas, nor is there any evidence that he suffered acute symptoms as a result with any serious insult to his lower respiratory tract. Nor could the Tribunal be accordingly satisfied that any such exposure occurred within ten years immediately before the clinical onset of chronic bronchitis, for which there is no medical diagnosis on the evidence before the Tribunal. The SoP template is not upheld by the available evidentiary material.
For all of these reasons the Tribunal rejects the hypothesis advanced on behalf of the applicant as a reasonable hypothesis.
MALIGNANT NEOPLASM OF THE COLORECTUM
It was submitted on behalf of the applicant that the evidence before the Tribunal was that prior to his service, the veteran’s health was good and he had maintained a healthy diet whereas following service, the veteran’s diet was poor and his health was on a continuous decline until his eventual death. It was contended that the veteran’s diet was altered by his war service which continued for the length of his life after service and eventually caused the primary carcinoma of the bowel.
The Tribunal accepts that there is material before it which supports the hypothesis outlined above and that the relevant Statement of Principles is Instrument No 1 of 2004.
The factors relied upon in the Statement of Principles connecting the veteran’s death from malignant neoplasm of the colorectum with the circumstances of his service are contained in Clause 5(m) and (o) as amended by Instrument No 39 of 2011 and read as follows:
“(m) an inability to consume an average daily intake of 20 grams
of fibre in food (or a total of 36 500 grams of fibre in food) over a
continuous period of five years within the ten years immediately
before the clinical onset of malignant neoplasm of the
colorectum; or
(o) an inability to consume an average daily intake of 150
micrograms of folate in food (or a total of 0.27 grams of folate in
food) over a continuous period of five years within the ten years
immediately before the clinical onset of malignant neoplasm of
the colorectum”
A comparison of civilian and army diets is contained in paragraph 18 of the Writeway Report which contains details of the energy, animal fat, protein and dietary fibre contents. At paragraph 19 the Report states:
“It shows that the various army diets compared favourably with the civilian diet.
…
There are no records which would show what the Veteran actually consumed but the diet on offer was adequate and included meats, vegetables, fruit and cereals. Meat provided as cooked fresh meat or processed or preserved meats to meet the ration scale”.
The respondent submitted that there is no causal link between the late veteran’s unability to consume an average daily intake of 20 grams of fibre in food or 150 micrograms of folate in food over a continuous period of five years within the ten years immediately following the clinical onset of his malignant neoplasm of the colorectum with his period of service.
The respondent referred the Tribunal to the decision in Brew v Repatriation Commission (1999) 94 FCR 80 at paragraph 26 where the Court considered the term “inability to obtain appropriate clinical management” and referred to the Oxford Dictionary of the word “inability” as “lack of ability, lack of power, capacity …”. The Full Court went on to state “The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as “the condition of being unable”. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends on the facts of that case”.
Mr Rudge maintained there is no evidence that the veteran was unable to obtain the daily intakes referred to in the SoP, particularly in light of the Writeway Report references to the standard army ration scales during the relevant period. Mr Rudge suggested that the veteran’s change in dietary habits may be linked to his general decline in health but maintained that there was no evidence before the Tribunal which connects the veteran’s general state of ill health with his service.
Whilst the Tribunal has no reason to doubt the evidence of the applicant and the evidence contained in the statements from family members regarding the veteran’s decline in health following his return from service, it finds that there is no evidence that links his death with his service in the manner contemplated by the relevant SoP. As stated in Clause 4 at least one of the factors set out in Clause 5 must be related to the relevant service rendered by the person. There is no evidence that the veteran was unable or lacked the power to consume the quantities of fibre and/or folate referred to in Clause (m) and (o) of the SoP. In the absence of any other evidence, the Tribunal accepts the material contained in the Writeway Report regarding the standard army rations which compared favourably with civilian diets of the period.
CONCLUSION
Section 13 of the Act states that the Commonwealth is liable to pay a pension to a claimant where the death of a veteran is war caused. Under section 8 a war caused death must arise out of or be attributable to any eligible war service rendered by the veteran. The claimed connection between the veteran’s death and his service is assessed pursuant to section 120 of the Act in the manner considered in the preceding paragraphs. For the above stated reasons the Tribunal is satisfied beyond reasonable doubt that the veteran’s death was not attributable to his war service and it is accordingly the Tribunal’s decision to affirm the decision under review.
I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) .
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Administrative Assistant
Dated 4 May 2012
Date(s) of hearing 13 and 14 March 2012 Counsel for the Applicant Jonathon McCarthy Solicitors for the Applicant Mackie Crompton Counsel for the Respondent Ken Rudge Solicitors for the Respondent Department of Veterans' Affairs
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