Little and Repatriation Commission - [2002] AATA 1263

DECISION AND REASONS FOR DECISION [2002] AATA 1263

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/25

VETERANS' APPEALS DIVISION       )
           Re      HAROLD WINSTON LITTLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date29 November 2002
PlaceHobart

Decision      The decision under review is affirmed.
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' Appeals – pension – aplastic anaemia – whether war-caused – reasonable hypothesis test – exposure to cordite in 1946 – decision under review affirmed.
Veterans' Entitlements Act 1986
Repatriation Commission v Bey (1997) 79 FCR 364 @ 366
East v Repatriation Commission (1987) 16 FCR 517

REASONS FOR DECISION

29 November 2002 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision of the Veterans' Review Board dated 17 June 1998, which affirmed decisions of the Repatriation Commission both dated 18 August 1997, determining that the applicant's claimed conditions of gastro-oesphageal reflux disease and aplastic anaemia were not war-caused within the meaning of s9 of Veterans' Entitlements Act 1986 ("the Act").
The applicant was represented by Mr Ross Hart and gave oral evidence before the Tribunal. The respondent Commission was represented by Mr M Castle. Oral evidence by telephone was given by Professor R M Lowenthal, Director of Oncology at the Royal Hobart Hospital and Dr Michael Beamish, Clinical Haematologist. Medical reports were received and tendered from Dr Beamish, (5 December 2000), Professor Lowenthal, (21 November 2000), enclosing a journal article entitled "Myelodysplastic syndromes" and Professor Richard Fox, (20 July 1999, 19 July 2000, 15 August 2000, 6 June 2001 and 27 June 2002), which enclosed copies of references in texts by Hoffman and Williams. The T documents were tendered pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
The applicant's statement of facts and contentions makes no reference to the rejection of the applicant's condition of gastro-oesphageal reflux disease, nor was any evidence led in respect of this condition. It was the applicant's contention that his exposure to chemical agents, specifically cordite during the course of operational duties, was causative of his current condition, namely aplastic anaemia.
Standard of Proof
It was agreed that the applicant's eligible service in the Australian Army was between 23 May 1945 and 8 October 1947 and constituted operational service within the meaning of the Act as he served in Japan as part of the British Commonwealth Occupational Forces. Accordingly, the standard of proof is that laid down in subsections 120(1) and (3) of the Act being that the Tribunal shall determine that the applicant's condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for the determination, if after considering the whole of the material before it, is of the opinion that the material does not raise a reasonable hypothesis connecting the applicant's disease with the circumstances of his service.
Legislation
As the applicant's claim was lodged on 19 March 1997 being after 1 June 1994, in accordance with the provisions of s120A of the Act, the Tribunal must determine the reasonableness of the hypothesis in accordance with any relevant Statements of Principles issued by the Repatriation Medical Authority. The Statement of Principles concerning aplastic anaemia, namely Instrument No 1 of 2001, postdates the applicant's claim and the Tribunal was not invited to determine the reasonableness of the hypothesis in accordance with that Statement. No evidence was presented in support of any of the factors listed in paragraph 5 of the Statement of Principle (No. 1 of 2001). There was no relevant Statement of Principles concerning aplastic anaemia issued nor any relevant determination or declarations under the Act as at the date of the applicant's claim or determination by the respondent Commission or the Veterans' Review Board.
Thus the Tribunal is mandated to follow the procedure laid down in s120(1) and (3) of the Act which was authoritatively summarised in the judgment of the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 @ 366:
"In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the High Court said of the relationship between subss (1) and (3) of s129:
`The position may be summarized as follows: (1) First, subs (3) of s129 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs (1) of s120 is applied.'"

Evidence

The applicant's evidence was that he was first diagnosed with aplastic anaemia on 2 February 1997 after being referred to Dr Beamish by his treating medical doctor, Dr Tim Mooney.
The applicant stated that he spent 3 months on the island of Ito Jima where he was involved in the demolition of munitions. He described how he worked with 2 to 3 other men in the removal of guns and depth chargers from some 44 sheds and 15 tunnels. He said that they were essentially untrained for the job, were not supplied with any protective gear, and in particular a respirator or gloves. He described the strong odour in the tunnel where there was no ventilation and recalled stinging in his eyes. He associated the smell with the chemical cordite which he had been told and subsequently read in notes was the material stacked and stored in the tunnel. The applicant stated that he spent between 8 and 10 hours a day in the tunnels dismantling the stores and munitions. He recalled that by the end of the day the skin on his arms "didn't feel too good", and that the skin on his face felt dry and his eyes stung "quite a bit".
The applicant also gave evidence that as part of his service duties he visited Hiroshima on or around 23 April 1946 and that he was at the epi centre of the atomic bomb site for approximately 8 hours. Mr Hart subsequently informed the Tribunal that the applicant was no longer relying on any potential exposure to radiation from the applicant's visit to Hiroshima in support of his claim, but was reliant on the applicant's service duties whilst at Ito Jima.
The applicant said that in 1997 he consulted his doctor after feeling particularly tired and experiencing ongoing bleeding from wounds. The applicant described his treatment for his condition of aplastic anaemia which has included blood transfusions as well as blood and bone marrow tests.
The applicant was asked about his work as a farmer after leaving the Army and in particular the use of chemical sprays. The applicant stated that he first used chemical sprays on the farm in around 1960 and that he always took precautions by wearing protective clothing.
Dr Michael Beamish, clinical haematologist, stated in evidence by telephone that he had been performing tests in relation to the applicant's condition over the past 4 years. He referred to his report dated 5 December 2000 in which he confirmed his diagnosis of aplastic anaemia rather than myelodysplsia. Dr Beamish's diagnosis of aplastic anaemia was based on the following reasons:
"(1)The original bone marrow report was significantly aplastic with very few cells of any description.
(2)The subsequent behaviour showed no evidence of abnormal cells in the peripheral blood or evidence of leukaemic transformation.
(3)Cyto-genetic and cell marker studies showed no evidence of cells of abnormal clone or lineage.
(4)There is no splenomegaly."
Dr Beamish informed the Tribunal that he had performed another bone marrow test procedure just two weeks ago which indicated no changes and he therefore had no reason to alter his original diagnosis. When asked whether he thought that the applicant's condition was long standing, his response was that it was not a long standing condition because of its severity, and that it had been ongoing for "a year or so". Dr Beamish said that in the majority of cases, there is no apparent cause for the condition. Dr Beamish confirmed his opinion as stated in his report dated 5 December 2000, that he agreed with Professor Lowenthal who had stated that the applicant's "aplastic anaemia decades after cordite exposure is not a reasonable hypothesis".
When Dr Beamish was asked whether it was possible for a patient's condition to develop from myelodysplasia to aplastic anaemia, he responded that it was most unlikely and that it was more likely for a patient to develop myelodysplasia after contracting aplastic anaemia. Whilst he conceded that it was not impossible for a patient to develop aplastic anaemia after contracting myelodysplasia, he said that he would not consider it a reasonable hypothesis.
Professor Lowenthal in his report dated 21 November 2000 stated that:
"Although aplastic anaemia can occur following exposure to a variety of chemicals and other agents, its appearance usually follows within a few weeks to months of such exposure. I am not aware of any precedent for aplastic anaemia occurring 40 to 50 years after exposure. (I was not told the date of Mr Little's diagnosis.) Accordingly, I cannot support the view that there is a "reasonable hypothesis" between Mr Little's exposure to cordite in 1946-47 and the development of aplastic anaemia decades later, even though I note that cordite may contain chemicals which have been linked the development of aplastic anaemia.
However, I have one major qualification for the above statement. I have not been provided with any clinical information about Mr Little's diagnosis. Myelodysplastic syndrome is easily confused with aplastic anaemia. It causes panytopenia and although in most cases the bone marrow is hyperplastic, a hypoplastic variety of MDS also occurs. ….
If Mr Little in fact had MDS rather than aplastic anaemia, I believe there would be "reasonable hypothesis" to link exposure in the 1940s with this late development. …. Accordingly, I believe the clinical distinction between aplastic anaemia and myelodysplastic syndrome needs to be made before a conclusion can be drawn in this."
In light of Dr Beamish's confirmation of the applicant's diagnosis of aplastic anaemia, it was Professor Lowenthal's opinion that it would be unprecedented for there to be an interval of some 50 years between the exposure to the chemical cordite and the development of a patient's aplastic anaemia. Nor was Professor Lowenthal aware of any case where someone had developed aplastic anaemia after suffering myelodysplasic syndrome.
Professor Lowenthal disagreed with Professor Richard Fox's conclusion that there was any basis for a reasonable hypothesis between the applicant's exposure to cordite and the development of his aplastic anaemia. In his opinion such a connection was highly speculative.
In the first of Professor Richard Fox's reports dated 20 July 1999, he stated:
"Aplastic anaemia is fairly rare, and in most cases, the cause is unknown.   Clearly it is going to be difficult to try and imply toxic exposure some 50 or so years ago.
I believe it would not be possible to try and related this to the effects of the Hiroshima bomb.    It is possible to develop aplasia following exposure to heavy irradiation. However, the effects of that come on within a matter of days to weeks and requires very high exposure.   I note that Mr Little arrived in Japan several months after the atomic bomb explosions, i.e. in 1946.   The radiation effects of the bomb were dissipated within minutes we have no information that in fact he was anywhere near Nagasaki or Hiroshima.
If there was some more information of a specific nature as to the nature of the munitions etc. then that may be helpful. However, I doubt that it is going to be possible.   I am not aware of cordite as a causal agent of aplastic anaemia, but you may have information not available to me."
In Professor Fox's second report dated 19 July 2000, he stated:
"I note that Mr Little has developed aplastic anaemia.
I note while on the island of Ita Jima during World War II service he was exposed to a 3 month period of disposing of ammunition dumps which consisted largely of cordite.
This material of course is trinitrotoluence.
There is a quite an established literature on the dangers of exposure to this material and subsequent development of aplastic anaemia. …"
In Professor Fox's third report dated 15 August 2000, he stated:
"I note my report to you of 19th July 2000. I content [sic] that the exposure to cordite over a three month period that Mr Little underwent during World War II constitutes a reasonable hypothesis as a causative factor based on his subsequent development of aplastic anaemia. …"
Professor Fox stated in his fourth reported dated 6 June 2001:
"It is possible that Mr Little had at `an earlier stage' suffered myelodysplasia which then went on to the development of aplastic anaemia."

It is noted that this view is contrary to the opinions of both Dr Beamish and Professor Lowenthal who were adamant that it is most unlikely for someone to develop from a myelodysplasic state to an aplastic anaemia state.

In the fifth report received from Professor Fox dated 27 June 2002 he referred to his report of 19 July 2000 where he had stated that trinitrotoluene was a component of cordite and went on to state:
"In retrospect, I am not quite sure of specific reference to trinitrotoluene as cordite. Trinitrotoluene was the basis of explosives used in the Second World War. I therefore presumably assumed that it was a component of cordite. I note that other explosives were in the caves in the islands on which Mr Little worked, so the matter is of little significance."
Professor Fox then referred to his annexed reference material where it was reported that 24 aplastic anaemia cases had been reported for the British explosives industry in two world wars as being attributable to trinitrotoluene. It is also noted that in 16 of the 20 case studies carried out in Mexico of aplastic anaemia, heavy insecticide exposure was implicated.
Determination
On balance, the Tribunal prefers the evidence of Dr Beamish and Professor Lowenthal to that of Professor Fox. The Tribunal finds Professor Fox's reported evidence contradictory and unsatisfactory. The statement in his initial report that one could develop a reasonable hypothesis between the applicant's exposure to cordite and the development of his aplastic anaemia appears to have been based on his conclusion that cordite comprised trinitrotoluene. However in Professor Fox's latest report, he said that in retrospect, he was not quite sure of a specific reference to trinitrotoluene as cordite.
The Tribunal also prefers the evidence of Dr Beamish and Professor Lowenthal that it would be highly unlikely for the applicant to have suffered myelodysplasia and then go on to develop aplastic anaemia. The Tribunal accepts Dr Beamish's evidence that the applicant's condition of aplastic anaemia had developed only in the last year or so and was not a long standing condition. As such, in the opinion of Dr Beamish and Professor Lowenthal it could not be linked to the applicant's exposure to cordite whilst involved in the demolition of munitions at Ito Jima in 1946.
The evidence before the Tribunal is that if there is a link between a person's exposure to trinitrotoluene, the development of aplastic anaemia manifests itself within a relatively short period of time after exposure. It is also noted that the time frame between exposure and the onset of aplastic anaemia prescribed in the factors listed in paragraph 5 of the Statement of Principle, Instrument No 1 of 2001 is only 180 days. Further, given the contents of Professor Fox's latest report, there is no conclusive evidence before the Tribunal that trinitrotoluene, an accepted chemical link in the development of aplastic anaemia, is an ingredient of cordite, the chemical to which it seems that the applicant had been exposed in the demolition of munitions at Ito Jima.
As stated by the Full Court in East v Repatriation Commission (1987) 16 FCR 517 @ 532-3:
"… A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis point to by the facts, even though not proved upon the balance of probabilities".
The applicant's blood tests revealed that he was free of the condition of aplastic anaemia as late as 1995. On the basis of the material before it, and the expert opinions of Professor Lowenthal and Dr Beamish, the Tribunal concludes that there is no sufficient ground for concluding that there is a reasonable hypothesis linking the applicant's service with his condition.
The Tribunal accordingly affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Administrative Assistant
Date/s of Hearing   13 December 2001, 3 October 2002
Date of Decision  29 November 2002
Counsel for the Applicant        Mr Ross Hart
Solicitor for the Applicant         Rae and Partners
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Repatriation Commission