Kevin Lightowlers and Repatriation Commission
[2015] AATA 17
•15 January 2015
[2015] AATA 17
Division VETERANS’ APPEALS DIVISION File Number(s)
2013/4743
Re
Kevin Lightowlers
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President, and Dr S Toh, Member
Date 15 January 2015 Place Sydney The decision under review is set aside and in substitution the Tribunal decides that Mr Lightowlers’ conditions of thymoma, autoimmune haemolytic anaemia and cryptococcoma of the lung are war-caused.
...................[sgd]..................................................
The Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – conditions of thymoma, autoimmune haemolytic anaemia and cryptococcoma of the lung – whether conditions are war-caused – operational service – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 s 120
CASES
Whitworth v Repatriation Commission (2003) 78 ALD 126
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC, Deputy President, and Dr S Toh, Member
15 January 2015
Mr Lightowlers served in the Royal Australian Navy. He enlisted on 12 October 1971 and was discharged on 31 March 1973. His service includes a period of operational service in Vietnam from 1 November 1972 to 30 November 1972 and defence service from 7 December 1972 to 31 March 1973.
Mr Lightowlers’ operational service comprised a voyage on HMAS Sydney to Vung Tau, South Vietnam. HMAS Sydney was anchored off Vung Tau for a period of 31 hours on 23-24 November 1972.
During 2007 he was diagnosed with autoimmune haemolytic anaemia, thymoma and cryptococcoma of the lung.
On 28 July 2011 Mr Lightowlers submitted a claim to the Repatriation Commission in respect to the conditions autoimmune haemolytic anaemia, thymoma and cryptococcoma of the lung.
On 6 September 2011 the Repatriation Commission made a decision that the conditions of autoimmune haemolytic anaemia, thymoma and cryptococcoma of the lung were not related to service. This decision was affirmed by the Veterans’ Review Board on 26 June 2013.
Mr Lightowlers applied to the Administrative Appeals Tribunal for a review of the decision on 19 September 2013.
Mr Lightowlers contends that the three conditions were caused by exposure to Agent Orange through drinking and washing with contaminated water when he was on HMAS Sydney while it was off Vung Tau and for a short period after it left Vung Tau.
The standard of proof that applies in this case, as it relates to a period of operational service, is as provided in ss 120(1) and 120(3) of the Veterans’ Entitlement Act 1986 which states as follows:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, 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) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
There was no dispute concerning the diagnoses of Mr Lightowlers’ conditions. It is common ground that in the event the connection between thymoma and service is established to the requisite standard, the remaining conditions will be conceded by the Respondent.
The issue to be decided by the Tribunal is whether there is a reasonable hypothesis raised on the material connecting thymoma with the circumstances of Mr Lightowlers’ service.
There is no Statement of Principles determined by the Repatriation Medical Authority in relation to the condition of thymoma. In these circumstances, the Tribunal needs to consider if there is any material pointing to Mr Lightowlers’ condition of thymoma being connected to his service.
There was no dispute that sailors on HMAS Sydney were exposed to Agent Orange although there is no evidence as to the precise extent of exposure.
LEGAL PRINCIPLES
The principles to be applied in assessing whether a reasonable hypothesis is present in terms of s 120(3) have been considered and settled in a line of authorities.
In Whitworth v Repatriation Commission (2003) 78 ALD 126 at [10] and [11], Ryan J, after reviewing the relevant case law, summarised the relevant principles for assessing the required hypothesis as follows:
·The hypothesis must not be fanciful, unreal or inconsistent with the known facts;
·Crucially, the material (the raised facts) must point to and not merely leave open an hypothesis;
·An hypothesis asserting a connection between the veteran’s death and war service may be “reasonable”, although theoretical, in the sense of postulating a chain of reasoning that medical science is unable to confirm but unable to described as unreasonable – provided however that the material does in fact point to it;
·A theory which is entirely unsupported by any substantiating fact cannot be reasonable. The chain of reasoning supporting an hypothesis cannot be based on supposition or assumption. There must be some positive basis pointing to a link in the chain;
·It may be that an hypothesis is put forward by a witness which is not impossible or fanciful yet the hypothesis itself will not be a reasonable one. It may remain, nevertheless, a mere and not a reasonable, hypothesis if there is no material pointing to it beyond the hypothesis itself;
·There is an important different between circumstances where there is some material that raises an hypothesis and an abstract hypothesis raised by a witness or party which cannot be ruled in or excluded on the basis of the raised facts. In the former case, the material may both raise an hypothesis and point to it with the result that a reasonable hypothesis could be made out; in the latter case, the hypothesis itself will have been put before the Tribunal which without more will not be able to find it to be reasonable.
MEDICAL EVIDENCE
A microscopic report detected a superior mediastinal tumour. The report stated:
The sections of the thymus show a minimally invasive type AB thymoma (WHO).
The thymoma is almost completely encapsulated and has a lobulated architecture. The two components are present both in distinct areas and intimately admixed, and are characterised by epithelial cells with a spindled morphology (type A), and areas with a relatively inconspicuous epithelial component and an abundant lymphocytic infiltrate (type B1)…
In correspondence dated 12 July 2011 Professor Presgrave, Senior Staff Specialist in Haematology, stated that:
[i]t is well recognised that thymoma may be associated with autoimmune disorders… I am not aware of any link between operational service in Vietnam and autoimmune diseases. It is certainly possible that his autoimmune disease contributed to his thymoma...
I am not aware of any direct link between operational service in Vietnam and thymoma. However various forms of thymic lymphoid tumours (non-Hodgkin’s lymphoma), may involve the same organ. These forms of tumour have been linked to exposure to agent orange…
In correspondence dated 14 June 2012 Professor Presgrave said that thymoma was a rare malignancy not treated by doctors involved in his specialty and that it was usually operated on by cardiothoracic surgeons and treated by medical oncologists. He suggested that it may be worthwhile obtaining an opinion from one or both of these specialists working in this area.
At the hearing before the Tribunal evidence was led in the form of reports and testimony by two specialists.
The Applicant relies on the evidence of Professor Walls who has worked extensively in the area of clinical immunology. He has taught in the Faculty of Medicine at the University of Sydney since 1976. The Respondent led evidence from Professor Levi who has extensive experience and qualifications in medical oncology.
The work of Professor Levi involves dealing with patients with tumours and managing control of malignancy. The role of Professor Walls as a clinical immunologist involves the management of immunological effects of a thymic tumour included autoimmunity and susceptibility to infection.
Professor Walls accepted that there are no case reports relating Agent Orange and development of thymoma in current medical literature. However, he referred to studies and reports which he considered provided evidence to support his contention that an hypothesis can reasonably be advanced to link the exposure to Agent Orange to the development of thymoma and that such hypothesis was biologically plausible.
He stated that TCDD, a component of Agent Orange, was acknowledged as a potent carcinogen across a wide range of animals and in humans and that treatment of experimental animals with TCDD had been associated with the development of malignancies in all animal bioassays reported. Experimental studies, he says, showed that this component of Agent Orange seemed to have an effect on epithelial cells. He also relied on some general epidemiological evidence of increased risk of malignancies involving the immune and haematological systems both in humans and in mice and other species exposed to dioxins.
Professor Walls also refers to experiments which he says shows that TCDD mediates its effects in mice and humans through the same transcription factor or aromatic hydrocarbon receptor. He infers that these experiments were performed in vitro when mice were the primary source of cells. He refers to other experiments which have shown that TCDD is toxic to the immune system in humans and that includes effects on thymic functioning in humans.
Professor Walls disagreed with Professor Levi’s positon that he was basing his hypothesis only on a small amount of evidence in mice. He accepts that experiments cannot be directly extrapolated between species but says evidence adduced from experiments on species other than humans have been important in establishing biological principles and have played a major role in understanding the human immune system. He said that thymoma is relatively rare in humans and because of this no epidemiological connection has been described in reports. He also refers to a United States case which referred to evidence both ways on this question.
In summary his hypothesis to explain a possible link between exposure to TCDD and the later development of thymoma is based on the following considerations:
·TCDD is a known carcinogen in many animal species including man;
·TCDD affects thymic functions in mice and humans;
·TCDD mediates its effects through the same transcription factor in mice and humans;
·his hypothesis of a link is biologically plausible and that experiments in animal species other than humans are important establishing biological principles.
Professor Levi, on the other hand, says that to his knowledge Agent Orange causes atrophy of thymus cells and that the carcinogenic effect is seen in sarcomas and lymphatic cells. He says that he is not aware that Agent Orange has any connection with lung cancer. Professor Levi states that it has not been shown in experimental animals that there is any evidence of carcinogenic effects in terms of epithelial cell neoplasm. He emphasises that the thymoma is caused by damage to the epithelial cells. He says that Professor Walls’s hypothesis that there is a link based on the studies of mice thymus and human thymic cells in vitro is speculation which fails to demonstrate any evidence sufficient to raise it to the level of a reasonable hypothesis. He based his opinion largely on the fact that there have been no case reports that Agent Orange is connected to thymoma and emphasises the fundamental point in relation to thymoma is that the malignant changes are in the epithelial cells and not in the lymphocytes. He accepts that Agent Orange is a carcinogen but says that it is not a universal carcinogen and that disturbance of the genetic material by this component does not “automatically” mean it will become a malignancy but only showed that there is disturbance which may cause some disease which on the other hand may not progress.
CONCLUSION
The Tribunal finds that both doctors are experienced, qualified and reliable in giving their opinions based on their fields of expertise. The Tribunal accepts that thymoma is a very rare tumour and that this may explain why no case reports have been located. It accepts that there had been no case reports that Agent Orange is connected to thymoma.
The studies which Professor Walls mentions are some indication that low concentrations of TCDD influences maturation of human thymic epithelial cells in vitro and that TCDD has been shown to affect gene regulation in thymic cells in mice resulting in loss of and differentiation in cells and disruption of epithelial cells in the thymus. This is mediated through the transcription factor which is the same in mice and humans.
The conclusion reached by Professor Levi is that the small amounts of experimental evidence in mice fails to demonstrate material sufficient to raise to the level of a reasonable hypothesis and such a theory represents speculation at this time in the absence of reliable data related to human thymomas. He says that in adults the thymus is made up mostly of epithelial cells and any lymphocytes presents are usually infiltrates from outside. He says that the thymoma under consideration was classified as AB and that the pathology showed type A and type B epithelial cells with heavy lymphocyte infiltrates. He states that lymphocytes are not a component of thymoma. He concludes that to date there is no evidence, experimental or clinical, to show that Agent Orange is related as a carcinogenic agent for thymomas.
Having considered all the evidence and the opinions before us in the present case we prefer the opinion of Dr Walls and we therefore conclude that the material referred to by Professor Walls is sufficient to point positively to the existence of a causative connection between the exposure to Agent Orange contamination in the present case and the onset and development of Mr Lightowlers’s thymoma. The Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for finding that the Applicant’s claimed condition of thymoma was not caused by his war service.
The decision of the Tribunal therefore is that the decision under review should be set aside and in substitution the Tribunal decides that Mr Lightowlers’ conditions of thymoma, autoimmune haemolytic anaemia and cryptococcoma of the lung were war-caused.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President, and Dr S Toh, Member ................[sgd]........................................................
Associate
Dated 15 January 2015
Date of hearing 11 September 2014 Date final submissions received 15 September 2014 Solicitors for the Applicant Mr G Kolomeitz, Glenn Kolomeitz Lawyers Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs
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