Knight and Repatriation Commission

[2003] AATA 790

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/1383

VETERANS'      APPEALS       DIVISION		)
Re		ELLEN KNIGHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date12 August 2003

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS; Veteran 76 at application date; receives EDA; application to have colon cancer accepted as war-caused; whether Statements of Principles satisfied; application for Special rate pension; whether s24 satisfied; decision affirmed.

Veterans’ Entitlements Act 1986 s24(2A), s23

Statement of Principles No.24 of 1996

Statement of Principles No.6 of 1998

Statement of Principles No.59 of 2002

REASONS FOR DECISION

12 August 2003          Mr John Handley, Senior Member

1.      The applicant applies to review a decision of the Veterans’ Review Board (“the VRB”) made 26 February 2002.  The VRB then decided to affirm decisions previously made by the respondent namely, a finding that malignant neoplasm of the colon was not war-caused and a decision to continue disability pension at the Extreme Disablement Adjustment rate (“EDA”).

2.      Mrs Knight is presently 79 years of age having been born on 20 April 1924.  She was a member of the Australian Women’s Army Service between 1 July 1942 to 31 January 1946.  She was engaged in “Eligible Service” for purposes of the Veterans’ Entitlements Act 1986 (“the Act”).

3.      A number of conditions have been accepted as war-caused namely sinusitis, bronchitis, blepharitis, nervous tension, ulcerative oesophagitis, conjunctivitis and fibromyalgia.

4.      An assessment of the accepted disabilities has clearly satisfied the respondent that the applicant meets the qualifying criteria for EDA.  The applicant in fact seeks a review of that decision by asserting an entitlement to Special Rate pension.

5. Entitlement to Special Rate pension is found at s24 of the Act. Mrs Knight meets the initial threshold qualification of an incapacity of 70% and it would appear that she is totally and permanently incapacitated. It would also appear that she is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. However I could not be satisfied, for reasons which follow, that the incapacity, alone, prevents Mrs Knight from continuing to undertake remunerative work that she was undertaking and by reason of that inability she is suffering a loss of salary or wages or earnings.

6.      These reasons for decision are prepared on the basis of written submissions lodged by both parties.  Mrs Knight is also unrepresented.  It would appear from the file that she ceased employment well before her 65^th birthday.  She was 76 at the date of the claim which gave rise to these proceedings.  She also suffers from a number of other illnesses and injuries which have been found by the respondent not to be war-caused, principally lumbar and thoracic spondylosis and asthma.  I could not be satisfied in those circumstances that Mrs Knight would be able to establish that she is totally and permanently incapacitated by war-caused injuries alone, which would prevent her from engaging in remunerative work for periods aggregating more than eight hours per week.  Additionally there is no material which points to Mrs Knight suffering of any loss of remuneration by reason of her war-caused injuries, alone.

7. Additionally, with regard to her age, the provisions of s24(2A) apply. Mrs Knight would not be able to satisfy sub-section (f) namely that she was undertaking her last paid work after she “turned” 65 years.

8. For the above reasons I could not be satisfied that there is an entitlement to Special Rate pension (or indeed Intermediate Rate pension under s23). Accordingly I can find no basis to set aside the decision under review concerning entitlement to EDA. That part of the decision under review in these proceedings will therefore be affirmed.

9.      The remaining part of the decision under review concerns the rejection of the application for acceptance of the condition of malignant neoplasm of the colon as war-caused.

10.     As I interpret the documents which have been lodged with the Tribunal and the submissions of both parties, Mrs Knight asserts a connection between service and the colon cancer on the basis of cigarette consumption, ulcerative colitis and suffering from dengue fever during service and the treatment of it subsequently.

11.     By reason of the claim which has given rise to these proceedings having been lodged after 1 June 1994, Mrs Knight needs to satisfy Statements of Principles issued by the Repatriation Medical Authority.

12.     The claim upon the Commission which initiated these proceedings was made on 8 November 2000.  At that date, Instrument No.24 of 1996 applied and at paragraph 5 the factors that must exist as a minimum before it could be found on the balance of probabilities that malignant neoplasm of the colon is connected with a persons service were:

(a)suffering from a colorectal adenomatous polyp before the clinical onset of malignant neoplasm of the colon; or

(b)smoking cigarettes or other tobacco products, where the equivalent of at least 30 pack years were consumed 30 years or more before the clinical onset of malignant neoplasm of the colon; or

(c)drinking at least 500 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon; or

(d)having had an altered dietary pattern resulting in a 50% increase in animal fat consumption and a 50% decrease in dietary fibre consumption for at least 20 years before the clinical onset of malignant neoplasm of the colon; or

(e)suffering from ulcerative colitis before the clinical onset of malignant neoplasm of the colon; or

(f)suffering from Crohn’s disease before the clinical onset of malignant neoplasm of the colon; or

(g)suffering from familial polyposis coli before the clinical onset of malignant neoplasm of the colon; or

(h)undergoing a course of therapeutic radiation involving the abdominal or pelvic region 10 years or more before the clinical onset of malignant neoplasm of the colon; or

(j)being physically inactive for at least 15 years more than five years before the clinical onset of malignant neoplasm of the colon; or

(k)being occupationally exposed to asbestos for 10 years more than 10 years before the clinical onset of malignant neoplasm of the colon; or

(m)inability to obtain appropriate clinical management for malignant neoplasm of the colon.

13.     Instrument No.24 of 1996 was amended by Instrument No.6 of 1998 only (relevantly) by deleting the word “were” at factor 5(b) and substituting the word “was”.

14.     On 6 August 2002 Instrument No.59 of 2002 was issued by the Repatriation Medical Authority.  It revoked Instrument No.24 of 1996 and Instrument No.6 of 1998 and substituted the following factors (which must exist before it could be said on the balance of probabilities that malignant neoplasm of the colon is connected with service) namely factors (a) to (j).

(a)suffering from a colorectal adenoma before the clinical onset of malignant neoplasm of the colorectum; or

(b)smoking at least 25 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum, and

(i)smoking commenced at least 35 years before the clinical onset of malignant neoplasm of the colorectum, and

(ii)where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or

(c)drinking at least 500 kilograms of alcohol within a 25 year period within the 30 years immediately before the clinical onset of malignant neoplasm of the colorectum; or

(d)suffering from ulcerative colitis for at least 10 years before the clinical onset of malignant neoplasm of the colorectum; or

(e)suffering from Crohn’s disease of the colorectum for at least 10 years before the clinical onset of malignant neoplasm of the colorectum; or

(f)suffering from familial adenomatous polyposis before the clinical onset of malignant neoplasm of the colorectum; or

(g)undergoing a course of therapeutic radiation involving the abdominal or pelvic region 15 years or more before the clinical onset of malignant neoplasm of the colorectum; or

(h)for malignant neoplasm of the colon only, an inability to undertake more than a mildly strenuous level of physical activity for at least 20 years within the 30 years before the clinical onset of malignant neoplasm of the colorectum; or

(i)for malignant neoplasm of the colon only, being obese for at least 30 years before the clinical onset of malignant neoplasm of the colorectum; or

(j)inability to obtain appropriate clinical management for malignant neoplasm of the colorectum.

15.     

With respect to the association between cigarette smoking and colon cancer Mrs Knight completed a smoking questionnaire found at page 21 of the

T-documents.  It is imprecise but it would indicate that she commenced smoking at the age of 18 whilst she was enlisted.  She described her smoking habit as being “moderate” and recorded that she ceased smoking “in early 1960” for approximately 18 months but was thereafter advised by her doctor to resume smoking because of bronchitis.  Unfortunately, contemporary medical knowledge of the consequences of smoking was not then known.

16.     Later in the questionnaire she recorded that her smoking did “decrease” to a level of “half dozen a day to no more than 10”..  It is not recorded when she decreased her smoking habit other than a recording in the form that it was “since I left army”.

17.     A “pack year” is defined in both Instruments as 7300 cigarettes which averages at 20 cigarettes per day for one year.  The first Instrument prescribed consumption of 30 pack years having been consumed 30 years or more before the clinical onset of the colon cancer.  The subsequent Instrument (No.59 of 2002) prescribes consumption of 25 pack years of cigarettes before the clinical onset and where smoking commenced at least 35 years before the clinical onset.  If smoking had ceased, the clinical onset occurred within 15 years of cessation.

18.     The only reference I can find in the T-documents to the clinical onset of colon cancer is at page 30 where Dr Gordon recorded on 5 December 2000 that the clinical onset of the condition of “Dukes C Recto Sigmoid Colon Cancer” was “approximately 12 months ago”.

19.     Assuming that that cancer is the cancer which has given rise to these proceedings, it would appear from the report completed by Dr Gordon that the clinical onset was in 1999.

20.     Whilst the history of cigarette smoking as recorded by Mrs Knight in her questionnaire at page 21 is imprecise, it would suggest that she has not ever satisfied the requisite minimum number of pack years of cigarette consumption.

21.     I could not therefore be satisfied that the requisite factor in either of the Instruments in issue of these proceedings exists as a minimum.

22.     Neither of the Instruments refers to a connection between service, dengue fever and colon cancer.  In those circumstances it cannot be said on the balance of probabilities that a connection exists between service, dengue fever and colon cancer.

23.     

With respect to the condition of ulcerative colitis, it would appear that it has existed from 1975.  For the purposes of this decision I am satisfied that the clinical onset occurred no later than 1975 (refer report of Dr Gordon at page 82 of the

T-documents).

24.     For the purposes of both Instruments it would appear that ulcerative colitis has existed before the clinical onset of colon cancer and certainly for at least 10 years before the clinical onset (Instrument No.59 of 2002).

25.     However it would be necessary for Mrs Knight to establish that ulcerative colitis is of itself connected with service on the balance of probabilities before she could satisfy either of the factors in the applicable Instruments.  There is no material presently lodged connecting service with ulcerative colitis.  An enquiry of the Repatriation Medical Authority website indicates that Statement of Principles have not been issued for that condition.  Should Mrs Knight wish to pursue a claim for acceptance of the condition of ulcerative colitis, and in the event that she succeeds in that application, she may ultimately succeed in having the condition of colon cancer accepted.

26.     At the present time however – and in the absence of any other information or submissions from Mrs Knight which would satisfy any of the other factors in the Statement of Principles in issue these proceedings – I am obliged to find that the decision under review with respect to malignant neoplasm of the colon is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.

Signed:         Elsa Genovese
  Personal Assistant