Lee and Repatriation Commission - [2000] AATA 305

DECISION AND REASONS FOR DECISION [2000] AATA 305

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/139

VETERANS' AFFAIRS DIVISION )

Re Alma Jean LEE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member Dwyer

Date19 April 2000
PlaceBendigo

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS – death due to left temporal glioblastoma - whether reasonable hypothesis connecting veteran's death with circumstances of particular service rendered - whether material points to a hypothesis connecting the glioblastoma with radiation to the head - whether "a course of therapeutic radiation" administered before clinical onset - whether material points to veteran suffering stroke - whether cerebrovascular accident a factor in veteran's death - decision affirmed

Bushell v Repatriation Commission (1992) 109 ALR 30

McKenna v Repatriation Commission (1999) 29 AAR 70

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

19 April 2000 Mrs Joan Dwyer, Senior Member

This is an application for review of a decision of the Repatriation Commission ("the Commission") made 22 April 1998 and affirmed by the Veterans' Review Board on 16 November 1998, which decided that the death of Mr Lee was not war-caused within the meaning of that term in the Veterans' Entitlements Act 1986 ("the Act").
At the hearing, Mrs Lee appeared. Mr R Douglass, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the Commission.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing.
Mr Lee served in the Royal Australian Air Force ("RAAF") from 28 April 1941 to 1 February 1946 which constitutes eligible war service as defined in the Act. As he served outside Australia and in the United Kingdom from 20 January 1942 until 4 November 1945, the whole of his service constitutes operational service. Mr Lee died on 3 March 1992 at the age of 70 years. The cause of death was certified to be:

Left temporal glioblastoma - 3 months

Because Mr Lee had operational service, the appropriate standard of proof is that set out in ss 120(1) and (3) of the Act. They provide that the Tribunal is required to find that Mr Lee's death was war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect the veteran's death with the circumstances of the particular service rendered.
Mrs Lee's first claim was lodged on 30 December 1992. That claim was rejected on 16 March 1993 by a Delegate of the Repatriation Commission. The current claim was lodged on 20 April 1998. As that is after 1 June 1994, the Tribunal must apply s 120A of the Act which requires the Tribunal, in deciding whether or not a reasonable hypothesis is raised, to refer to a Statement of Principles ("SoP") if one exists in respect of the relevant condition. There has at all relevant times been a SoP in respect of the condition of Primary Malignant Neoplasm of the Brain which covers left temporal glioblastoma. As at the date of the decision of the Repatriation Commission (see Keely v Repatriation Commission (1999) 56 ALD 455), that SoP was Instrument No 203 of 1995. The Tribunal must apply the relevant SoP in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Lee's death with the circumstances of his particular service.
Mr Lee's brain tumour was diagnosed in late 1991 when he presented with a two month history of headache, ataxia and right sided weakness. He was admitted to the Austin and Repatriation Medical Centre ("the Austin") on 25 November 1991 and underwent surgery on 27 November 1991. Much of the tumour was removed but the operation notes (T4 p16) explain that the tumour could not be totally cleared because of its extension into the internal capsule (T4 p16).
The T documents (T8 p30) contain a description of malignant cerebral tumours from Principles and Practice of Medicine which states: "these vary in cellular type, in degrees of malignancy and in rates of growth…. A Grade 4 astrocytoma (also called a glioblastoma multiforme) is a highly malignant, fast growing tumour causing rapid clinical deterioration".
Mrs Lee's primary submission was that as the causes of glioblastoma are unknown (see T8 p29) it could not be said that any hypothesis she advanced, based on her nursing experience was unreasonable. She attempted to link the glioblastoma with stress, with diet, with a knock on the head or with heavy drinking after service. Mrs Lee had obtained a statement (A2) from a Mr Kelly who served with Mr Lee in England. He recalled Mr Lee suffering injuries when he was knocked to the ground by a flying bomb when walking along Kingsway in London.
Mrs Lee said that before he served overseas Mr Lee was a very nice young man with a placid nature. She said that when he returned to Australia from service in the United Kingdom he was moody and anxious and could not handle stress. He took to alcohol as a form of self medication and increased his drinking over the years.
Mrs Lee explained to the Tribunal the difficulties she had experienced due to her husband's changed disposition after service. She attributed the change to the conditions in which he worked in the RAAF Base Post Office in London, to the English rations and to the bombing of London. She wrote in a statement (T7 pp22-26) that he felt stress during those bombings when he assisted in trying to recover dead and wounded. She also recounted an incident which she believed affected him. It occurred when he was injured when a flying bomb exploded near him while he was walking in London, and he was knocked to the ground.
Mrs Lee suggested that poor diet during service in England, alcohol intake, stress or a knock on the head could all be implicated in the causation of the glioblastoma as the cause is unknown, as Dr Yoga wrote at T8 p29. The logic of Mrs Lee's submission was recognised by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30. Mason CJ, Deane and McHugh JJ said at p41:
The hypothesis was supported by two eminent practitioners who drew on scientific studies which championed the theory. It was also conceded that "some respectable medical practitioners" accept the connection between stress and essential hypertension. It is a connection which apparently also has the support of the National Heart Foundation. True it is that the weight of informed medical opinion is against the hypothesis. However, the cause of essential hypertension is still unknown. In these circumstances, a finding that the hypothesis was not reasonable, although a matter for the Tribunal, is surprising. (emphasis added)
However those comments were made before the introduction into the Act of ss 120A, 120B, and Parts XIA and XIB. Since these amendments came into operation any claims lodged after 1 June 1984 must be decided, if there is a relevant SoP, in accordance with that SoP. The Tribunal is no longer free to form its own opinion as to the reasonableness of hypotheses advanced by Mrs Lee. It is limited by what is in the relevant SoP.
The only possibly relevant factor in the SoP for primary malignant neoplasm of the brain is that in paragraph 1(a)(i) which reads:
(a) for malignant glioma only;
(i) undergoing a course of therapeutic radiation to the head or neck before the clinical onset of primary malignant neoplasm of the of the brain
….
For a factor to be of assistance in establishing that a condition is war-caused, the factor must be "related to any service rendered by the veteran". Mrs Lee said she was aware that during his service in London Mr Lee had numerous dental visits and four or five extractions and had been fitted with a part-upper denture plate. She stated he had also had a number of fillings to some of the teeth not extracted. Mrs Lee believed that Mr Lee must have had x-rays prior to any extractions and possibly before he had any teeth filled. She considered there was reason to conclude that he may have undergone numerous x-rays to his mouth in the course of his dental treatment in London.
Mrs Lee relied on the x-rays Mr Lee may have had as part of his dental treatment as constituting "a course of therapeutic radiation" as specified in factor (a)(i) in the relevant SoP. The SoP in paragraph 4 provides:
"a course" means five or more episodes of treatment within a 125 day period", . . . "therapeutic radiation" means medical treatment by irradiation to the person with gamma rays, x-rays, alpha particles or beta particles".
The respondent submitted that there was no material raising or pointing to Mr Lee having been administered "a course of therapeutic radiation". As has been explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, there is no onus of proof on an applicant in a matter such as this. There is however a requirement that there be some material raising or pointing to the factor relied on as establishing the hypothesis recognised in the relevant SoP. The Full Court of the Federal Court explained in Repatriation Commission v Bey (1997) 47 ALD 481 that evidence raising only "a mere possibility" cannot raise a reasonable hypothesis.
The T documents at pp67 and 68 include copies of records of Mr Lee's dental treatment during service. They show that he attended for dental examination or treatment on the following dates in Australia:
4 May 1941
18 June 1941
12 November 1941
31 December 1941
6 January 1942

It seems probable that Mr Lee had a plate even before he enlisted on 28 April 1941 as the entry on 18 June 1941 states "Add tooth to plate." The plate seems to have been remodelled in December 1941 and January 1942. On 6 January 1942 the record states (T2 p6):

"condition satisfactory for posting overseas although not absolutely dentally fit."

While in London Mr Lee had further visits to the dentist and further remodelling of his plate. The dental record card is not entered consecutively. So far as I can decipher, it records visits and treatment as follows (T20 p67):
Date    Treatment
6.1.42 condition satisfactory for posting overseas although not absolutely dentally fit
12 Mar '43      RE-EXAM PUREM 78         48       SP6
12 Mar '43      For amalgamen
6 Mar '43        4DO amalgamen
7 Mar '43        Scale & clean
22 Nov '43      PUREM
27 Jul '43        PU Impression
18 Aug '44      PU bite
18 Aug '44      PU try on
28 Aug '44      PU inserted
There is no indication in those records that Mr Lee had any X-rays as part of the treatment. The T docs at p64 include an extract said to be from a submission to the Repatriation Medical Authority, which was attached to a submission made on behalf of Mrs Lee. It reads:
45. Prior to 1945 a full mouth dental x-ray series was likely to expose the patient to a dose within the range of what is commonly regarded as a therapeutic dose (up to 315 Rad).
The submission on Mrs Lee's behalf, at T20 p62, claimed there were eight visits to a dentist between 12 November 1941 and 12 May 1942. The records in the T documents do not support that analysis. There are seven visits between 12 November 1941 and 12 March 1943 (not May 1942 as stated in the submission). There is no period of five visits in 125 days, nor are there any entries to show that X-rays were ever administered, let alone administered as a course of five treatments in 125 days.
Applying the steps as laid down by the Full Court in Deledio the material does not raise or point to any hypothesis connecting the glioblastoma with radiation to the head. Thus the first step is not satisfied, and it is not necessary to consider step 3 to see whether there is evidence raising or pointing to Mr Lee having undergone "a course of therapeutic radiation" consisting of five or more episodes of treatment within a 125 day period. If I were to consider that issue, I would be satisfied beyond reasonable doubt that the requirements of the SoP were not met. The claim in respect of death due to left temporal glioblastoma must fail.
There was another way in which Mrs Lee sought to raise a reasonable hypothesis connecting Mr Lee's death with the circumstances of his service. Her former solicitor had lodged with the Tribunal a report dated 7 February 2000 from her husband's treating doctor, Dr Street (A3). It reads as follows:
Mr Lee was an inpatient on the Rehabilitation Unit at Anne Caudle Campus from 27/12/91 to the 3/3/92.
Mrs Lee has asked me to write to you about the events on the 10th & 11th February 1992 when Mr Lee deteriorated, developing increased weakness in his right arm and leg and requiring assistance of two people for transfer. On examination he had right hemiplegia and right hemisensory and visual neglect.
Our provisional diagnosis was local recurrence of tumour although it is not possible to exclude concurrent vascular disease causing a stroke.
In view of his general condition no further investigations were performed. He was treated palliatively until he passed away on the 3/3/92.
Mrs Lee said that she had been told at the nursing home that her husband had a stroke over the weekend of 10 and 11 February 1992. She suggested that his death could be found to be war-caused on the basis that it was contributed to by a stroke which was related to service. It has been established by the Full Court of the Federal Court in McKenna v Repatriation Commission (1999) 29 AAR 70 that if a disease is relied on as a link in the chain of establishing that a death or other disease is war-caused, it can only be found to be war-caused if there is a SoP concerning that disease, if there is a reasonable hypothesis consistent with the relevant SoP. Mrs Lee sought to rely on factor (e) in paragraph 5 of Instrument No. 23 of the SoP relating to Cerebrovascular Accident. That factor relates to alcohol consumption.
There is no medical evidence raising or pointing to the possibility that stroke or cerebrovascular accident was a factor in Mr Lee's death. It is not mentioned in the death certificate or in the hospital or Anne Caudle Centre notes. Nor does Dr Street suggest in his report of 7 February 2000 that stroke contributed to death. He says that the provisional diagnosis was local recurrence of the tumour and refers to the possibility of concurrent vascular disease causing a stroke. The symptoms which Mrs Lee attributed to stroke over the weekend of 10 and 11 February 1992 such as right sided weakness, were part of the presentation prior to original diagnosis of the tumour. That weakness is shown in the nursing notes of the Anne Caudle Centre (R3) as present post operatively from December 1991 and as attributable to a recurrence of the tumour. The difficulty feeding is also mentioned for some time, prior to 10 February 1992, e.g. 8 January 1992, 10 January 1992, 12 January 1992. During late January and early February the symptoms deteriorated further as shown by the notes for 31 January, and 3, 4, 5, 6, 7, 8 and 9 February (R3). There is no medical evidence or material in the nursing notes raising or pointing to Mr Lee suffering a stroke over the weekend of 10 and 11 February 1992. Dr Morgan, Senior Medical Officer Appeals with the Department of Veterans' Affairs wrote (R6):
4.Stroke. I can find no evidence of cerebrovascular accident or stroke. All neurological deficit is attributable to the cerebral tumour.
Accordingly the hypothesis of a stroke contributing to death is not a hypothesis raised by the material before the Tribunal.
The decision under review will be affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  7 April 2000
Date of Decision  19 April 2000
Counsel for the Applicant        Nil
Solicitor for the Applicant         Nil – Self Represented
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr R Douglass